PRE-CLOSING COVENANTS. Seller covenants and agrees with respect to the Stations that, between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its terms, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of Buyer, Seller shall act in accordance with the following: 9.1.1 Seller shall conduct the business and operations of the Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Stations, including but not limited to maintaining the independent identity of the Stations. 9.1.2 Seller shall use its reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to the date of this Agreement. 9.1.3 Seller shall operate the Stations in all respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC. 9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof and will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement. 9.1.5 Except for changes or actions in the ordinary course of business consistent with past practices, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations (provided
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
PRE-CLOSING COVENANTS. Seller covenants 6.1 Conduct of the Inotersen Program Prior to Closing. From the date of this Agreement until the Expiration Date, Ionis (a) shall, and agrees shall cause its Affiliates to, with respect to the Stations thatdevelopment and commercialization of inotersen and its follow-on drug IONIS-TTR-LRx (the “Inotersen Program”), between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its terms, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of Buyer, Seller shall act in accordance with the following:
9.1.1 Seller shall conduct the business and operations of the Stations only take actions in the ordinary and prudent course of business in a manner that is consistent with past practice and practice; (b) comply in all material respects with the intent of preserving Applicable Laws applicable to the ongoing operations and assets of the Stations, including but not limited to maintaining the independent identity of the Stations.
9.1.2 Seller shall Inotersen Program; (c) use its reasonable best efforts to: to preserve intact the rights granted to Akcea pursuant to the License Agreement (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations“Licensed Rights”); and (iiid) continue use reasonable best efforts to conduct financial operations preserve intact the material business relationships of the StationsInotersen Program with employees, including without limitationsuppliers, their credit licensors, licensees and collection and pricing policies and practices, all others with whom the Inotersen Program deals in the ordinary course of business consistent with past practicespractice. Further, andIonis shall not, without limiting the generality and shall not permit any of its representatives or Affiliates to, do any of the foregoingfollowing in connection with the Inotersen Program without the prior written consent of Akcea (i) dispose of, Seller shall not discount fail to prosecute or maintain or permit to lapse or fail to take reasonable steps to protect the Licensed Rights; (ii) permit or allow any of the Licensed Rights to become subject to any lien, pledge, security interest or other encumbrances; (iii) amend, modify or waive any Material Contract; or (iv) violate, withdraw, materially amend, allow to lapse or otherwise take any action or fail to ▇▇▇▇ any action that would result in Ionis or any of its accounts receivablerespective Affiliates being in material default (with or without notice or lapse of time or both) under any licenses, accelerate its efforts permits, authorizations, registrations, qualifications or approvals necessary to collect accounts receivable the Inotersen Program, or take any other action or use fail to take any other collection method not regularly taken action or used by it cause any other event that would result in the ordinary course of business prior to the date of this Agreement.
9.1.3 Seller shall operate the Stations in all respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, modification, revocation or adverse modification of any of the Stations Licensesnonrenewal thereof, or fail giving to prosecute with due diligence any pending applications to the FCCother person any right of termination, amendment or cancellation thereof.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof and will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions in the ordinary course of business consistent with past practices, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations (provided
Appears in 1 contract
Sources: Stock Purchase Agreement (Akcea Therapeutics, Inc.)
PRE-CLOSING COVENANTS. The Seller covenants and agrees with respect to the Stations that, Companies covenant and agree that between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its termsDate, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of the Buyer, Seller they shall act in accordance with the following:
9.1.1 (a) The Seller shall, and shall cause the Companies to, and the Companies shall, conduct the their business and operations of the Stations in the ordinary and prudent course of business consistent with past practice customary and industry standards and with the intent of preserving the ongoing operations and assets of the Stations, including but not limited to maintaining the independent identity of the StationsCompanies.
9.1.2 (b) The Seller shall, and shall cause the Companies to, and the Companies shall, use its their commercially reasonable best efforts to: (i) to preserve the operation of the Stations intact; (ii) Companies intact and to preserve the business of the StationsCompanies' advertisers, customersclients, suppliers and others having business relations with the Stations; Companies and (iii) continue to conduct the financial operations of the StationsCompanies, including without limitation, their its credit and collection and pricing policies and practicespolicies, all in the ordinary course of business consistent with past practicessubstantially the same effort, andand to substantially the same extent and in the same manner, without limiting as in the generality prior conduct of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in business of the ordinary course of business prior to the date of this AgreementCompanies.
9.1.3 (c) The Seller shall, and shall cause the Companies to, and the Companies shall, operate the Stations in all respects Companies in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders.
(d) The Seller shall not, and shall prevent the Companies from, and the Companies shall not cause (i) acquire, sell or permit by any actdispose of, commit to sell or dispose of, or failure to act, encumber or mortgage any of the Stations Licenses to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to SellerCompanies's attention, Seller will promptly notify Buyer thereof and will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions assets except in the ordinary course of business consistent with past practices, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices)business; (bii) except as set forth on Schedule 7.14waive, release, grant or as required by applicable law transfer any rights of value or written agreements currently modify or change in effectany material respect any existing license, lease, contract or other document which would affect the Companies or the Seller after the Closing in excess of $100,000; (iii) grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations Companies; (providediv) grant or agree to grant any specific bonus or increase to any executive or management employee of the Companies; (v) provide for any new pension, retirement or other employment benefits for employees of the Companies or any increases in any existing benefits; (vi) enter into any new agreement which would bind the Companies after the Closing which agreement is expected to cause revenues or obligations to or from the Companies in excess of $100,000; (vii) amend its Certificate of Incorporation or By-Laws; (viii) change the number of authorized shares of its capital stock; (ix) split or reclassify any shares of its capital stock or declare, set aside or pay any dividend or other distribution or payment in cash, stock or property in respect of shares of its capital stock; (x) undertake any debt of the Companies for borrowed money in addition to the debt of the Companies as described in Schedules 5.7 and 5.9 of the Disclosure Schedule or pursuant to existing lines of credit in the ordinary course of business; or (xi) make or commit to make any distribution from the Company to TV, in each case, except as otherwise separately agreed to by the Seller, the Companies, and the Buyer. Notwithstanding
Appears in 1 contract
PRE-CLOSING COVENANTS. Seller covenants Sellers covenant and agrees agree with respect to the Stations that, between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its terms, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of BuyerBuyers, Seller Sellers shall act in accordance with the following:
9.1.1 Seller Sellers shall conduct the business and operations of the Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Stations, including but not limited to its books and records in accordance with prior practice, maintaining the present condition of the Stations Assets, maintaining the independent identity of the Stations, retaining the current format and programming (including the content thereof) of the Stations, continuing at historical levels and frequencies spending for promotions, advertising, and survey testing, and using their reasonable best efforts to retain at the Stations the services of all active employees, consultants and agents of the Stations.
9.1.2 Seller Sellers shall use its their reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to the date of this Agreement.
9.1.3 Seller Sellers shall operate the Stations in all respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses or other licenses, permits or authorizations listed in Schedule 7.4 to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.the
9.1.4 Should any fact relating to Seller Sellers which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's Sellers' attention, Seller Sellers will promptly notify Buyer Buyers thereof and will use its their reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions in the ordinary course of business consistent with past practicespractices and incentives granted to employees in connection with the sale of the Stations, Seller Sellers shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by the applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations (providedprovided that no such increases to any employee shall in the aggregate exceed 5 % of such employee's compensation as set forth on Schedule 7.14 hereto), (c) except as required by written agreements currently in effect, grant or agree to grant any specific bonus or increase in compensation to any executive management employee of the Stations (provided that no such increases to any employee shall in the aggregate exceed 5 % of such employee's compensation as set forth on Schedule 7.14 hereto); (d) provide for any new pension, retirement or other employment benefits for employees of the Stations or any increases in any existing benefits, (e) modify, change or terminate any Contract or waive any default or breach thereunder; or (f) change the advertising rates in effect as of the date hereof.
9.1.6 Sellers shall give or cause the Stations to give Buyers and Buyers' counsel, accountants, auditors, engineers and other representatives, at Buyers' reasonable request and upon reasonable notice, full and reasonable access to all of Sellers' personnel, properties, books, Contracts, reports and records (including, without limitation, financial information and tax returns relating to the Stations, and environmental audits in existence with respect to the Stations Assets), real estate, buildings and equipment relating to the Stations and to the Stations' employees, and to furnish Buyers with information and copies of all documents and agreements relating to the Stations and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Stations to enable Buyers' representatives to audit the Financial Statements, or for any other purpose) that Buyers may reasonably request. Sellers shall execute and deliver any consents reasonably requested by Buyers or Buyers' auditors in connection with an audit of the Financial Statements for the Stations. The rights of Buyers under this Section 9.1.6 shall not be exercised in such a manner as to interfere unreasonably with the business of the Stations.
9.1.7 Sellers shall use their reasonable best efforts to obtain any third party consents necessary for the assignment of any Contract (which shall not require any payment to any such third party except for such amounts contemplated by the Contract to be assigned, and any amount then owing by Sellers to such third party).
9.1.8 Sellers shall:
(a) refrain from making any sale, lease, transfer or other disposition of any of the Stations Assets having a value in excess of $10,000 in the aggregate, other than in the normal course of business at fair market value in connection with replacements of equal or greater value without the prior approval of Buyers, which approval will not be unreasonably withheld; (b) maintain insurance on the Stations Assets for loss or damage by fire and all other hazards and risks for full replacement cost and for comprehensive liability coverage in amounts consistent with prudent business practices;
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
PRE-CLOSING COVENANTS. Seller covenants and agrees with respect to the Stations that, between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its terms, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of Buyer, Seller shall act in accordance with the following:
9.1.1 Seller shall conduct the business and operations of the Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Stations, including but not limited to maintaining the independent identity of the Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to the date of this Agreement.
9.1.3 Except for conditions described in Schedule 7.4, Seller shall operate the Stations in all respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof and will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions in the ordinary course of business consistent with past practices, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations (providedprovided that no such increase to any employee shall exceed the amount budgeted therefor in RBF's 1999 budgets) unless such increase is as a result of increased commissions payable to employees on account of increased advertising sales; (c) except as required by written agreements currently in effect, grant or agree to grant any specific bonus or increase in compensation to any executive management employee of the Stations (provided that no such increase to any employee shall exceed the amount budgeted therefor in RBF's 1999 budgets) unless such bonus or increase is as a result of increased commissions payable to employees on account of increased advertising sales or is used as an incentive for employees to remain with the Stations up to the Closing; (d) provide for any new pension, retirement or other employment benefits for employees of the Stations or any increases in any existing benefits, (e) modify, change or terminate any Contract other than in the ordinary course of business; or (f) change the advertising rates in effect as of the date hereof other than in the ordinary course of business.
9.1.6 Seller shall give or cause the Stations to give Buyer and Buyer's counsel, accountants, engineers and other representatives, at Buyer's reasonable request and upon reasonable notice, full and reasonable access during normal business hours to all of Seller's personnel, properties, books, Contracts, reports and records (including, without limitation, financial information and tax returns relating to the Stations, and environmental audits in existence with respect to the Stations Assets), real estate, buildings and equipment relating to the Stations and to the Stations' employees, and to furnish Buyer with information and copies of all documents and agreements relating to the Stations and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Stations, and any engineering materials in Seller's possession regarding the operations of the Stations and the ability, if any, of the Stations' signals to be upgraded) that Buyer may reasonably request. The rights of Buyer under this Section 9.1.6 shall not be exercised in such a manner as to interfere unreasonably with the business of the Stations.
9.1.7 Seller shall use its reasonable best efforts to obtain any third party consents necessary for the assignment of any Contract (which shall not require any payment to any such third party except for such amounts contemplated by the Contract to be assigned, and any amount then owing by Seller to such third party).
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
PRE-CLOSING COVENANTS. Seller covenants and agrees with respect to the Stations Station that, between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its terms, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of BuyerBuyers, Seller shall act in accordance with the following:
9.1.1 Seller shall use all commercially reasonable efforts to conduct the business and operations of the Stations Station in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the StationsStation, including but not limited to maintaining the independent identity of the StationsStation, and retaining the current format and programming (including the content thereof) of the Station, and using all reasonable efforts to retain at the Station the services of all active employees, consultants and agents of the Station who are being transferred to the Buyers.
9.1.2 Seller shall use its all commercially reasonable best efforts to: (i) preserve the operation of the Stations intactStation; and (ii) preserve the business of the Stations' Station's advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to the date of this AgreementStation.
9.1.3 Seller shall operate the Stations Station in all material respects in accordance with FCC rules and regulations and the Stations Station Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Station Licenses or other licenses, permits or authorizations listed in Schedule 7.4 to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Station Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer Buyers thereof and will use its all reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions in the ordinary normal course of business consistent with past practicesbusiness, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by the applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations Station (providedprovided that no such increases to any employee shall in the aggregate exceed 5% of such employee's compensation as set forth on Schedule 7.14 hereto), (c) except as required by written agreements currently in effect, grant or agree to grant any specific bonus or increase in compensation to any executive management employee of the Station (provided that no such increases to any employee shall in the aggregate exceed 5% of such employee's compensation as set forth on Schedule 7.14 hereto); (d) provide for any new pension, retirement or other employment benefits for employees of the Station or any increases in any existing benefits, (e) modify, change or terminate any Contract; or (f) change the advertising rates in effect as of the date hereof.
9.1.6 Seller shall give or cause the Station to give Buyers and Buyers' counsel, accountants, engineers and other representatives, at Buyers' reasonable request and upon reasonable notice, full and reasonable access during normal business hours to all of Seller's personnel being transferred with the Station, properties, books, Contracts, reports and records (including, without limitation, financial information and tax returns relating to the Station, real estate, buildings and equipment relating to the Station and to the Station's employees, and to furnish Buyers with information and copies of all documents and agreements relating to the Station and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Station) that Buyers may reasonably request. The rights of Buyers under this Section 9.1.6 shall not be exercised in such a manner as to interfere unreasonably with the business of the Station.
9.1.7 Seller shall use all reasonable efforts to obtain any third party consents necessary for the assignment of any Contract (which shall not require any payment to any such third party except for such amounts contemplated by the Contract to be assigned, and any amount then owing by Seller to such third party).
9.1.8 Seller shall:
(a) refrain from making any sale, lease, transfer or other disposition of any of the Station Assets having a value in excess of $10,000 in the aggregate, other than in the normal course of business at fair market value in connection with replacements of equal or greater value without the prior approval of Buyers, which approval will not be unreasonably withheld;
(b) if requested by Buyers, with respect to any Contract which can be terminated or not renewed by Seller in compliance with the terms thereof, notify the other parties to such Contract that Seller elects to terminate (or, if applicable, elect not to renew) such Contract; and
(c) within thirty (30) days following the end of each calendar month, provide Buyers with a statement of income for the Station for such month and for the year-to-date period then ended (including a comparison to budget).
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
PRE-CLOSING COVENANTS. Notwithstanding all of Buyer's rights to --------------------- purchase the Property under this Agreement, but subject to the terms and provisions of this Section 11.14, Seller covenants hereby retains all rights to own, -------- ----- operate, lease, contract, or otherwise exercise the rights of the ownership of the Property prior to Closing without the consent or approval of Buyer; provided, however, that so long as this Agreement remains in full force and agrees effect:
(a) Seller shall not convey any interest in the Property other than provided for in this Agreement and shall not subject the Property to any additional liens, encumbrances, covenants, conditions, easements, rights of way or similar matters after the Effective Date, except as may be otherwise provided for in this Agreement, which will not be removed or eliminated at or prior to Closing;
(b) Except as may be required as part of its responsibilities as landlord under a Lease, Seller shall not make any new material alterations to the Property except those alterations contemplated by Seller's current Contracts for Capital Improvements Plan pursuant to Section 10.13 and those material ------------- alterations which may be required of an emergency nature without Buyer's prior written consent;
(c) Seller shall maintain and operate the Property in substantially the same condition, and the Supply Inventories at substantially the same levels, as of the Effective Date, ordinary wear and tear excepted, and shall use reasonable good faith efforts to cause the Manager to manage the Property in substantially the same manner as the Manager has managed the Property during the period from the date on which the Manager was appointed as manager of the Property to the Effective Date including, without limitation, Seller shall:
(i) accept Hotel Booking (exclusive of "trade-out" agreements) for the use of the Hotel on terms not less favorable than the terms typically arranged by Seller as of the date of this Agreement and in accordance with Seller's prior practice;
(ii) maintain the current level of advertising and other promotional activities for Hotel facilities;
(iii) remain in substantial compliance with all current License Agreements;
(iv) keep and maintain the Property in a state of repair and condition consistent with the requirements of clause (c) above;
(v) not cause or permit the removal of Tangible Personal Property from the Property except for the purpose of discarding and replacing, where needed or appropriate, worn items, and timely make all repairs, maintenance, and replacements to keep the Property and all Tangible Personal Property in good operating condition;
(vi) not allow any permit, license or other Intangible Personal Property or other right currently in existence with respect to the Stations thatoperation, between use, occupancy or maintenance of the date hereof and the Closing Date Property to expire, be canceled or the earlier termination of this Agreement in accordance with its otherwise terminated, except pursuant to their respective terms, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the without Buyer's prior written consent of Buyer, Seller shall act in accordance with the following:consent;
9.1.1 Seller shall conduct the business and operations of the Stations (vii) except in the ordinary and prudent course exercise of Seller's reasonable business consistent with past practice and with judgment, not cancel any existing Hotel Bookings for the intent use of preserving the ongoing operations and assets of the Stations, including but not limited to maintaining the independent identity of the Stations.
9.1.2 Property facilities or new Hotel Bookings obtained by Seller shall use its reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to after the date of this Agreement.
9.1.3 Seller shall operate the Stations in all respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure continue to act, any of book contracts and reservations consistent with prior practices;
(viii) keep the Stations Licenses to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings existing insurance coverage for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof Property in full force and will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions in the ordinary course of business consistent with past practices, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations (provided;
Appears in 1 contract
Sources: Purchase and Sale Agreement (American General Hospitality Corp)
PRE-CLOSING COVENANTS. Seller covenants and agrees The parties agree as follows with respect to the Stations that, period between the date hereof and the Closing Date or the earlier termination execution of this Agreement in accordance with its terms, except as expressly permitted by this Agreement or required by or provided otherwise by and the Time Brokerage Agreement, or with the prior written consent of Buyer, Seller shall act in accordance with the following:Closing.
9.1.1 Seller shall conduct the business and operations a. Each of the Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Stations, including but not limited to maintaining the independent identity of the Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to the date of this Agreement.
9.1.3 Seller shall operate the Stations in all respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof and parties will use its reasonable best efforts to take such steps as may be all actions and to do all things necessary in order to remove any such impediment to the FCC's consent to consummate and make effective the transactions contemplated by this Agreement, including satisfaction, but not waiver, of the Closing conditions set forth below.
9.1.5 Except for changes b. Seller and Buyer will give any notices to third parties, and Seller and Buyer will use their best efforts to obtain any third party consents that Buyer may request or actions require.
c. Seller will not engage in any practice, take any material action or enter into any transaction outside the ordinary course of business consistent except as contemplated by the Merger Agreement and this Agreement.
d. Seller will use its best efforts to keep the Business and Assets substantially intact, including its present operations, physical facilities, working conditions and relationships with past practiceslessors, licensors, suppliers, contractors, service providers, customers, lessees and employees.
e. Seller shall not: (a) sell broadcast time on a prepaid basis (other than will permit representatives of the Buyer to have full access to all premises, properties, personnel, books, records, contracts and documents of or pertaining to Seller, the Business or the Assets, and will provide reasonable assistance to Buyer in the course conduct of existing credit practices); (b) except as Buyer's due diligence reviews. Seller will also permit representatives of Buyer to regularly be on premises to observe and monitor the operation of the Business and to learn Seller's operating systems, methods, policies and procedures. Buyer agrees that if this Agreement is terminated for any reason whatsoever, Buyer shall, at Seller's request, promptly return to Seller all information and data furnished Buyer in connection with this Agreement or Buyer's investigation of the Business or Assets. Buyer shall destroy all copies, extracts or excerpts of such information and data and all documents generated by Buyer that contain any portion of such information or data.
f. Each party will give prompt written notice to the other party of any material adverse development causing a breach of any of its own representations and warranties set forth on above. No disclosure by any party pursuant hereto, however, shall be deemed to amend or supplement the Disclosure Schedule 7.14or to prevent or cure a misrepresentation, breach of warranty or as required by applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates breach of salaries or compensation payable to employees of the Stations (providedcovenant.
Appears in 1 contract
PRE-CLOSING COVENANTS. Seller covenants and agrees with respect to the Stations that, between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its terms, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of BuyerBuyers (which shall not be unreasonably withheld, delayed, or conditioned), Seller shall act in accordance with the following:
9.1.1 Seller shall use its commercially reasonable efforts to conduct the business and operations of the Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the Stations Assets and ongoing operations and assets of the Stations, including but not limited to maintaining the independent identity of the Stations, retaining the current format and programming (including the content thereof) of the Stations, continuing at historical levels and frequencies spending for promotions, advertising, and survey testing, and using its commercially reasonable efforts to retain at the Stations the services of all active employees, consultants and agents of the Stations.
9.1.2 Seller shall use its commercially reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, . Seller shall not discount change, alter or modify, in any material respect, its accounts receivablebusiness practices relating to the generation of advertising revenue including, accelerate but not limited to increasing costs and expenses incurred by the Seller for the short-term purpose of generating revenue to meet the thresholds set forth in Section 11.9. This restriction shall not prevent the Seller from making such changes in its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it procedures which are done in the ordinary course of business prior to business, consistent with past practice, which activities may include, but shall not be limited to, the date practice of this Agreementselling "surplus advertising inventory" in accordance with Seller's historical practices.
9.1.3 Seller shall operate the Stations in all material respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not (i) cause or permit by any act, or failure to act, any of the Stations Licenses or other licenses, permits or authorizations listed in Schedule 7.4 to expire, be surrendered, adversely modified, or otherwise terminated, or (ii) cause the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or (iii) fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should Subject to the provisions of Sections 5.2 and 16.1, should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer Buyers thereof and will use its commercially reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this AgreementConsent.
9.1.5 Except for changes or actions in the ordinary course of business consistent with past practices, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations (provided
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
PRE-CLOSING COVENANTS. Seller covenants From and agrees with respect to the Stations that, between after the date hereof and until the Closing Date or Date, the earlier termination Company shall (and the Stockholders shall cause the Company to), unless Purchaser shall otherwise agree in writing:
(a) operate and maintain the business of this Agreement the Company in accordance with its terms, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreementordinary course of business and refrain from doing, or with causing to be done, anything which is represented and warranted not to have been done since the prior written consent of BuyerBalance Sheet Date in Sections 7.18(a) through (o) hereof;
(b) continue to insure the Company's Real Property, Seller shall act assets and risks substantially in accordance with the following:manner set forth in the Disclosure Letter, and use, operate, maintain and repair all such Real Property, assets and risks in accordance with the Company's prior practice to the extent not inconsistent with Section 5.02(g) hereof;
9.1.1 Seller shall conduct (c) use its best efforts (without making any commitments on behalf of Purchaser) to preserve the Company's business organizations intact, keep available the services of the Company's present employees, and preserve the Company's present relationships with its employees, vendors, suppliers and customers and others having business relationships with it;
(d) refrain from doing any act or omitting to do any act, or permitting any act or omission to act, which will cause a breach of any material agreement, contract, commitment or obligation of the Company;
(e) furnish to Purchaser such accounting information or financial statements regularly generated by the Company promptly after the same is available;
(f) not solicit, encourage, cooperate with or facilitate (by way of furnishing information, or otherwise) any inquiries or proposals (other than the transaction contemplated hereby) for the acquisition of the stock, assets or business of the Company;
(g) maintain and keep the facilities, machinery and equipment of the Company that are necessary to the operation of the business being conducted by the Company in good operating condition and repair, except for ordinary wear and tear;
(h) not merge or consolidate with any other Person;
(i) consult with Purchaser regarding all significant developments, transactions and proposals relating to the business and operations of the Stations Company;
(j) promptly notify Purchaser of any material adverse change which may hereafter occur with respect to (i) the condition, financial or otherwise, operations, prospects, assets, liabilities, contracts, licenses, rights or results of operations of the Company whether or not covered by insurance, or with respect to relationships between the Company and any of its employees, creditors, suppliers, vendors, customers or others having business relationships with the Company or (ii) any Law or regulation applicable to the Company;
(k) not enter into, or become obligated under, any lease, contract, agreement or commitment (other than project bids or contracts which are governed by Section 5.02(l) below), except for any lease, contract, agreement or commitment (i) having a term of one (1) year or less and involving either a payment by or to the Company of less than $250,000, and (ii) entered into in the ordinary and prudent regular course of business consistent with past practice business;
(l) not submit any binding bids for projects or enter into, or become obligated under, any contracts, agreements or commitments necessary to perform projects, which are in excess of $4 million, without the prior review and with the intent approval of preserving the ongoing operations and assets Purchaser which will not be unreasonably withheld;
(m) not change, amend, terminate or otherwise modify any material lease, contract, agreement or commitment;
(n) not make any non-cash distributions to any of the Stations, including but not limited to maintaining the independent identity Stockholders; and
(o) promptly notify Purchaser of the Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stationsany claims, including without limitationlimitation claims for indemnification, their credit asserted against the Company and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to the date of this Agreement.
9.1.3 Seller shall operate the Stations in all respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of pending or threatened claims as to which the Stations Licenses, Company or fail to prosecute with due diligence any pending applications to the FCCStockholder becomes aware.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof and will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions in the ordinary course of business consistent with past practices, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations (provided
Appears in 1 contract
Sources: Stock Purchase Agreement (Great Lakes Dredge & Dock Corp)
PRE-CLOSING COVENANTS. Seller covenants The Sellers and agrees the Companies covenant and agree with respect to the Stations that, Station that between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its termsDate, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of the Buyer, Seller they shall act in accordance with the following:; provided that Buyer agrees that if Sellers and the Companies fully comply with their obligations hereunder, Sellers shall not be responsible under covenants 8.1.1 or 8.1.2, if its employees or customers elect to discontinue their association with the companies, due to the announcement of the transactions contemplated by the Agreement or if there is a change in the historic revenues, or the Arbitron (or other audience) ratings for the Station, between the date hereof and the Closing.
9.1.1 Seller 8.1.1 The Sellers shall cause the Companies to and the Companies shall conduct the business and operations of the Stations Station in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the StationsStation, including including, but not limited to maintaining to, retaining the independent identity current format of the Stations.
9.1.2 Seller shall use Station, using its reasonable best efforts to: (i) to retain the services of its employees, and keeping in good standing all licenses, permits and authorizations.
8.1.2 The Sellers shall cause the Companies to and the Companies shall use reasonable efforts to preserve the operation of the Stations intact; (ii) Station intact and to preserve the business of the Stations' advertisers, Station's customers, suppliers and others having business relations with the Stations; Station and (iii) continue to conduct the financial operations of the StationsStation, including without limitation, their its credit and collection and pricing policies and practicespolicies, all in the ordinary course of business consistent with past practicessubstantially the same effort, andand to substantially the same extent and in the same manner, without limiting as in the generality prior conduct of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in business of the ordinary course of business prior to the date of this AgreementStation.
9.1.3 Seller 8.1.3 The Shareholders of WWYZ shall cause the Companies to and the Companies shall operate the Stations in all respects Station in accordance with all material FCC rules Rules and regulations Regulations and the Stations Station Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Station Licenses to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Station Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 8.1.4 Should any fact relating to Seller the WWYZ or its shareholders which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to SellerWWYZ's or its shareholders attention, Seller will the shareholders or WWYZ, as the case may be, shall promptly notify the Buyer thereof and will shall use its their reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions 8.1.5 The Sellers shall prevent the Companies from, and the Companies shall not other than in the ordinary course of business or in accordance with a pre-existing plan or arrangement listed in the Disclosure Schedule (i) sell or dispose of or commit to sell or dispose of any of the Companies or the Station's assets; (ii) except for normal salary reviews, not to exceed 5%, with personnel on the anniversary date of employment, consistent with past practicespractice, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in and for compensation for certain officers and employees how are due to resgin at the course of existing credit practices); (b) except as set forth Closing and are listed on Schedule 7.14, or as required by applicable law or written agreements currently in effectII, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations Companies or the Station; (providediii) except for normal salary reviews, not to exceed 5%, with personnel on the anniversary date of employment, consistent with past practice, and for compensation to certain officers and employees who are to resign at Closing and are as listed on Schedule II, grant or agree to grant any specific bonus or increase to any executive or management employee of the Companies or the Station; or (iv) provide for any new pension, retirement or other employment benefits for employees of the Companies or the Station or any increases in any existing benefits.
8.1.6 The Sellers shall provide the Buyer prompt written notice of any material change in any of the information contained in the representations and warranties made in Article 6 hereof or any Exhibits or the Disclosure Schedule herein or attached hereto.
8.1.7 Following the acquisition of all approvals under Section 4, provided there is no unsatisfied condition precedent to Buyer's obligation, the Companies and the Sellers shall give the Buyer and the Buyer's counsel, accountants, engineers and other representatives, full and reasonable access during normal business hours to all of the Companies's personnel, properties, books, contracts, reports and records including financial information and tax returns, to all real estate, buildings and equipment relating, and to the Companies and the Station's employees in order that the Buyer may have full opportunity to make such investigation as it desires of the affairs of the Companies and to furnish the Buyer with information, and copies of all documents and agreements including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Companies and the Station, that the Buyer may reasonably request. The rights of the Buyer under this Section shall not be exercised in such a manner as to interfere with the business of the Station. Prior to such date, Sellers and Companies shall provide Buyer with such information as may be requested for review off premises. The failure to provide such information shall constitute a material breach of this Agreement unless cured by Sellers within the time periods set forth herein.
Appears in 1 contract
PRE-CLOSING COVENANTS. Seller covenants and agrees with respect to the Stations that, between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its terms, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of BuyerBuyers, Seller shall act in accordance with the following:
9.1.1 Seller shall use its reasonable best efforts to conduct the business and operations of the Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Stations, including but not limited to maintaining the independent identity of the Stations, retaining the current format and programming (including the content thereof) of the Stations, continuing at historical levels and frequencies spending for promotions, advertising, and survey testing, and using its reasonable best efforts to retain at the Stations the services of all active employees, consultants and agents of the Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to the date of this Agreement.
9.1.3 Seller shall operate the Stations in all respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses or other licenses, permits or authorizations listed in SCHEDULE 7.4 to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer Buyers thereof and and, subject to Section 5.2, will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions in the ordinary course of business consistent with past practices, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by the applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations (providedprovided that no such increases in fixed compensation to any employee shall in the aggregate exceed 5% of such employee's compensation as set forth on SCHEDULE 7.14 hereto), (c) except as required by written agreements currently in effect, grant or agree to grant any specific bonus (other than a bonus for remaining as an employee until the Closing Date) or increase in compensation to any executive management employee of the Stations (provided that no such increases to any employee shall in the aggregate exceed 5 % of such employee's fixed compensation as set forth on SCHEDULE 7.14 hereto); (d) provide for any new pension, retirement or other employment benefits for employees of the Stations or any increases in any existing benefits, (e) modify, change or terminate any Contract; (f) change the advertising rates in effect as of the date hereof, or (g) enter into any Trade Agreements.
9.1.6 Seller shall give or cause the Stations to give Buyers and Buyers' counsel, accountants, engineers and other representatives, at Buyers' reasonable request and upon reasonable notice, full and reasonable access to all of Seller's personnel, properties, books, Contracts, reports and records (including, without limitation, financial information and tax returns relating to the Stations, and environmental audits in existence with respect to the Stations Assets), real estate, buildings and equipment relating to the Stations and to the Stations' employees; to furnish Buyers with financial statement consents, certifications, information and copies of all documents and agreements relating to the Stations and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Stations) that Buyers may reasonably request. The rights of Buyers under this Section 9.1.6 shall not be exercised in such a manner as to interfere unreasonably with the business of the Stations.
9.1.7 Seller shall use its reasonable best efforts to obtain any third party consents necessary for the assignment of any Contract (which shall not require any payment to any such third party except for such amounts contemplated by the Contract to be assigned, and any amount then owing by Seller to such third party).
9.1.8 Seller shall provide to Buyers within forty-five (45) days after the date of this Agreement (a) title insurance commitments, issued by a title insurance company reasonably satisfactory to Buyers, agreeing to issue to Buyers and its senior lender, on the most current standard ALTA form, leasehold, owners and lenders policies of title insurance with respect to all Owned Real Estate and to all Leased Real Estate which is used as a tower/antenna site (except as otherwise specifically agreed in SCHEDULE 9.1), together with a copy of each document to which reference is made in such commitments, insuring title in full accordance with the representations and warranties set forth herein and subject only to such conditions and exceptions, and with such endorsements, as Buyers or their senior lenders may approve or require, and (b) up-to-date surveys of all Owned Real Estate and to all Leased Real Estate which is used as a tower/antenna site, each prepared in accordance with ALTA/ASCM standards and each detailing the legal description, the perimeter boundaries, all improvements thereon, all easements and encroachments affecting each parcel, and such other matters as may be reasonably requested by Buyers or the title insurance company, each containing a surveyor certificate of recent date reasonably acceptable to Buyer an the title insurance company, and each prepared by a registered land surveyor. The cost of the title commitments shall be paid by Seller; the cost of the insurance policy premiums and surveys shall be paid by Buyers.
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
PRE-CLOSING COVENANTS. Seller covenants and agrees with respect to the Stations that, between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its terms, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of Buyer, Seller shall act in accordance with the following:
9.1.1 Seller shall use its reasonable best efforts to conduct the business and operations of the Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Stations, including but not limited to maintaining the independent identity of the Stations, retaining the current format and programming (including the content thereof) of the Stations, continuing at historical levels and frequencies spending for promotions, advertising, and survey testing, and using its reasonable best efforts to retain at the Stations the services of all active employees, consultants and agents of the Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to the date of this Agreement.
9.1.3 Seller shall operate the Stations in all respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses or other licenses, permits or authorizations listed in Schedule 7.4 to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof and will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions in the ordinary course of business consistent with past practices, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations (providedprovided that no such increases to any employee shall in the aggregate exceed 6 % of such employee's compensation as set forth on Schedule 7.14 hereto) unless such increase is as a result of increased commissions payable to employees on account of increased advertising sales; (c) except as required by written agreements currently in effect, grant or agree to grant any specific bonus or increase in compensation to any executive management employee of the Stations (provided that no such increases to any employee shall in the aggregate exceed 6 % of such employee's compensation as set forth on Schedule 7.14 hereto) unless such increase is as a result of increased commissions payable to employees on account of increased advertising sales; (d) provide for any new pension, retirement or other employment benefits for employees of the Stations or any increases in any existing benefits, (e) modify, change or terminate any Contract other than in the ordinary course of business; or (f) change the advertising rates in effect as of the date hereof other than in the ordinary course of business.
9.1.6 Seller shall give or cause the Stations to give Buyer and Buyer's counsel, accountants, engineers and other representatives, at Buyer's reasonable request and upon reasonable notice, full and reasonable access during normal business hours to all of Seller's personnel, properties, books, Contracts, reports and records (including, without limitation, financial information and tax returns relating to the Stations, and environmental audits in existence with respect to the Stations Assets), real estate, buildings and equipment relating to the Stations and to the Stations' employees, and to furnish Buyer with information and copies of all documents and agreements relating to the Stations and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Stations) that Buyer may reasonably request. The rights of Buyer under this Section 9.1.6 shall not be exercised in such a manner as to interfere unreasonably with the business of the Stations.
9.1.7 Seller shall use its reasonable best efforts to obtain any third party consents necessary for the assignment of any Contract (which shall not require any payment to any such third party except for such amounts contemplated by the Contract to be assigned, and any amount then owing by Seller to such third party).
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
PRE-CLOSING COVENANTS. Seller covenants and agrees with respect to the Stations that, between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its terms, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of BuyerBuyers, Seller shall act in accordance with the following:
9.1.1 Seller shall use its reasonable best efforts to conduct the business and operations of the Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Stations, including but not limited to maintaining the independent identity of the Stations, retaining the current format and programming (including the content thereof) of the Stations, continuing at historical levels and frequencies spending for promotions, advertising, and survey testing, and using its reasonable best efforts to retain at the Stations the services of all active employees, consultants and agents of the Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to the date of this Agreement.
9.1.3 Seller shall operate the Stations in all material respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses or other licenses, permits or authorizations listed in Schedule 7.4 to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer Buyers thereof and will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions in the ordinary course of business consistent with past practices, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by the applicable law or written agreements currently in effect, grant or agree to grant any general or specific increases in the rates of salaries or compensation payable to employees of the Stations (providedthat shall in the aggregate exceed 5 % of such employee's compensation as set forth on Schedule 7.14 hereto), (c) except as required by written agreements currently in effect, grant or agree to grant any specific bonus or increase in compensation to any executive management employee of the Stations (that shall in the aggregate exceed 5 % of such employee's compensation as set forth on Schedule 7.14 hereto), (d) provide for any new pension, retirement or other employment benefits for employees of the Stations or any increases in any existing benefits, (e) modify, change or terminate any Contract, (f) decrease the advertising rates in effect as of the date hereof, or (g) enter into any Trade Agreements. For purposes of obtaining the consent of Buyers for the matters described in Sections 1.1.3 and 9.1.5, Seller shall give Buyers written notice by facsimile of the proposed barter agreement or operational change and if Seller does not receive an objection within 72 hours of the giving of such notice, then Buyers will be deemed to have consented to the matter covered by such notice.
9.1.6 Seller shall give or cause the Stations to give Buyers and Buyers' counsel, accountants, engineers and other representatives, at Buyers' reasonable request and upon reasonable notice, full and reasonable access during normal business hours to all of Seller's personnel, properties, books, Contracts, reports and records (including, without limitation, financial information and tax returns relating to the Stations, and environmental audits in existence with respect to the Stations Assets), real estate, buildings and equipment relating to the Stations and to the Stations' employees, and to furnish Buyers with information and copies of all documents and agreements relating to the Stations and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Stations to enable Buyers' representatives to audit the Financial Statements or for any other purpose) that Buyers may reasonably request. The rights of Buyers under this Section 9.1.6 shall not be exercised in such a manner as to interfere unreasonably with the business of the Stations.
9.1.7 Seller shall use its reasonable best efforts to obtain any third party consents necessary for the assignment of any Contract (which shall not require any payment to any such third party except for such amounts contemplated by the Contract to be assigned and any amount then owing by Seller to such third party).
9.1.8 Not less than ten (10) business days prior to the Closing Date, Seller, at its expense, shall provide to Buyers (a) title insurance commitments, issued by a title insurance company reasonably satisfactory to Buyers, agreeing to issue to Buyers and its senior lender, on the most current standard ALTA form, leasehold owners and lenders policies of title insurance with respect to all Real Estate which is used as a tower/antenna site, together with a copy of each document to which reference is made in such commitments, insuring title in full accordance with the representations and warranties set forth herein and subject only to such conditions and exceptions, and with such endorsements, as Buyers or its senior lenders may approve or require, and (b) where needed to obtain title insurance commitments, up-to-date surveys of all Real Estate
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
PRE-CLOSING COVENANTS. Seller covenants and agrees with respect to the Stations that, between (a) From the date hereof and the Closing Date or the earlier termination of this Agreement until the Closing, the Principals shall cause the Target Group to give, until the Closing, to the Purchaser and its representatives 26249768.3 during normal business hours such access to their premises, assets, books, accounts, tax returns, contracts and records and to their personnel and to furnish them with such information relating to their business, affairs and assets, in accordance with its termseach case, as the Purchaser may reasonably request, unless the provision of such information is competitively sensitive or would violate Applicable Law, in which case, the Parties shall use reasonable efforts to make appropriate substitute arrangements under circumstances in which the foregoing restriction applies, including by making such information available to the Purchaser’s external legal counsel on an external-counsel only basis.
(b) From the date of this Agreement until the Closing, except as expressly permitted contemplated by this Agreement or required by or provided otherwise by with Purchaser’s consent, the Time Brokerage Agreement, or with the prior written consent of Buyer, Seller shall act in accordance with the following:
9.1.1 Seller Target Group shall conduct the its business and operations of the Stations in the ordinary and prudent course of business consistent with past practice and with use commercially reasonable efforts to maintain and preserve intact the intent of preserving the ongoing operations current organization, business and assets franchise of the Stations, including but not limited Target Group and to maintaining the independent identity of the Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i) preserve the operation rights, franchises, goodwill and relationship of the Stations intact; (ii) preserve the business of the Stations' advertiserstheir employees, customers, suppliers lenders, suppliers, distributors and others having business relations relationships with the Stations; Target Group.
(c) Without limiting the generality of Section 4.4(b), from the date hereof until the Closing, except as otherwise provided in this Agreement or as consented to in writing by the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), the Principals shall not cause the Target Group to:
(i) not maintain insurance upon all its assets comparable in amount, scope and coverage to that in effect on the date hereof;
(iiiii) continue to conduct financial operations of the Stationsnot maintain its books, including without limitation, their credit records and collection and pricing policies and practices, all accounts in the ordinary course of business the business, consistent with past practicespractice;
(iii) amalgamate, andmerge or consolidate with, without limiting or acquire equity interests in or assets of, any person;
(iv) not pay and discharge the generality liabilities of the foregoingTarget Group, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior business, consistent with past practice, except those being contested in good faith;
(v) amend, terminate or cancel, or cause to amend, terminate or cancel, the date Governing Documents of this Agreement.the Target Group;
9.1.3 Seller shall operate the Stations (vi) split, combine or reclassify any outstanding securities of any Target Group Member;
(vii) not comply in all material respects in accordance with FCC rules its covenants and regulations obligations under the Material Contracts and the Stations Licenses and with all Material Operating Leases;
(viii) (x) other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof and will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions than in the ordinary course of business business, consistent with past practicespractice, Seller shall not: (a) sell broadcast time on enter into any contract which would be a prepaid basis (other than in the course of existing credit practices); (b) except as set forth on Schedule 7.14, or as required by applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations (provided“Material Contract” or
Appears in 1 contract
Sources: Contribution and Exchange Agreement
PRE-CLOSING COVENANTS. Seller covenants and agrees with respect to (a) During the Stations that, period between the date hereof and the Closing Date Date, the Company shall give to Purchaser’s officers, employees, agents, attorneys, consultants, accountants and lenders commercially reasonable access during normal business hours to all of the properties, books, Contracts, documents, insurance policies, records, customers, vendors and personnel of or with respect to the Company and shall furnish to Purchaser and such Persons as Purchaser shall designate to the Company such information as Purchaser or such Persons may at any time and from time to time reasonably request. The investigation contemplated by this Section 6.1 shall not affect or otherwise diminish or obviate in any respect, or affect the Purchaser’s right to rely upon, any of the representations, warranties or covenants contained in this Agreement or the earlier termination indemnification rights of the Purchaser Indemnities contained in this Agreement.
(b) During the period between the date hereof and the Closing Date, Sellers and the Company shall use all commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate the Transactions as soon as practicable. Between the date hereof and the Closing Date, neither Sellers nor the Company shall intentionally perform any act that, if performed, or intentionally omit to perform any act that, if omitted to be performed, would prevent or excuse the performance of this Agreement by any party hereto or that would result in accordance with its terms, except any representation or warranty herein contained of such party being untrue in any material respect as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of Buyer, Seller shall act in accordance with the following:
9.1.1 Seller shall conduct the business if originally made on and operations as of the Stations Closing Date, other than changes arising in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Stations, including but Ordinary Course that would not limited reasonably be expected to maintaining the independent identity of the Stationshave a Material Adverse Effect.
9.1.2 Seller (c) During the period between the date hereof and the Closing Date, the Company shall use its commercially reasonable efforts and make every good faith attempt to obtain all third party consents required to be listed on Schedule 3.4. If the Company is unable to obtain any of these consents, the Company shall make alternative arrangements satisfactory to Purchaser with respect to any such consents. The Company shall use its commercially reasonable efforts and assist and cooperate with Purchaser to obtain all of the consents, authorizations, Orders or approvals, including all state and federal licensure, necessary for the operation of the Business following the Closing, including all of the consents, authorizations, Orders or approvals required to be listed on Schedule 3.4.
(d) During the period between the date hereof and the Closing Date, the Company shall carry on the Business in the Ordinary Course. In furtherance of the foregoing, the Company shall use its best efforts to: (i) preserve the operation present business operations, organization and goodwill of the Stations intactCompany; (ii) preserve the business present relationships of the Stations' advertisers, Company with customers, suppliers suppliers, employees and others having business relations other Persons; (iii) comply with all Orders and Laws applicable to the Company; (iv) pay, or cause to be paid, in a timely manner consistent with current practices all accounts payable and expenses incurred in connection with the Stationsmaintenance and operation of the Business; (v) collect, or cause to be collected, in a timely manner consistent with current practices all accounts receivable generated in connection with the operation of the Business; (vi) maintain inventory, supplies and spare parts at customary operating levels consistent with current practices; (vii) replace in accordance with past custom and practice any inoperable, worn out or obsolete assets with modern assets of comparable quality; (viii) maintain books, accounts and records used in the operation of the Business and/or the preparation of the Financial Statements in accordance with past custom and practice; and (iiiix) continue to conduct financial maintain all insurance policies in effect on the date hereof covering the assets, liabilities and operations of the StationsCompany.
(e) During the period between the date hereof and the Closing Date, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller Company shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly that would be required to be disclosed on Schedule 3.17 if such action was taken or used by it in the ordinary course of business since December 31, 2014 and prior to the date execution of this Agreement, unless the Company discloses such action to Purchaser in advance and Purchaser consents to such action.
9.1.3 Seller (f) During the period between the date hereof and the Closing Date, the Company shall operate confer and consult with representatives of Purchaser on a regular and frequent basis to report on operational matters of the Stations in Business, provided that such conferences and consultations do not materially interfere with the operation of the Business. In addition, the Company shall furnish promptly to Purchaser all respects separate monthly financial statements of the Company (as prepared in accordance with FCC rules normal accounting procedures) promptly after such financial statements are available, and regulations and the Stations Licenses and with all other lawsmaterial information concerning the operations, regulations, rules properties and orders, and shall not cause or permit by any act, or failure to act, any personnel of the Stations Licenses Company and as Purchaser may reasonably request.
(g) As promptly as practicable following the date hereof and in any event not later than three Business Days thereafter, the Company shall mail to expireeach Optionholder notice of the expiration of all Options held by such person as provided in Section 2.5 hereof and instructions for exercising such Option prior to the expiration thereof, all of which shall be surrendered, adversely modified, satisfactory to Purchaser in its reasonable discretion.
(h) The Company will give prompt written notice to Purchaser of (i) any breach or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification inaccuracy of any representation or warranty of the Stations Licenses, Company in any Transaction Document (including those in Articles III and IV hereof) or fail to prosecute with due diligence any pending applications to breach or nonperformance of any covenant of the FCC.
9.1.4 Should Company or any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by in any Transaction Document (including those in this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof and will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except for changes or actions in the ordinary course of business consistent with past practices, Seller shall not: (a) sell broadcast time on a prepaid basis (other than in the course of existing credit practicesArticle VI); (bii) except as set forth on Schedule 7.14the occurrence of any material damage to or loss or destruction of any properties or assets owned or leased by the Company (whether or not insured); or (iii) the occurrence or threatened occurrence of any event or condition which resulted in, or as required by applicable law could reasonably be expected to result in a Material Adverse Effect or written agreements currently in effect, grant or agree that might reasonably be expected to grant any general increases in prevent the rates of salaries or compensation payable to employees timely consummation of the Stations (providedTransactions. No disclosure by the Company pursuant to this Section 6.1(h) shall be deemed to amend or supplement the representations and warranties made hereunder or to prevent or cure any misrepresentation, breach or inaccuracy of warranty or breach or nonperformance of covenant.
Appears in 1 contract
Sources: Merger Agreement (Medovex Corp.)
PRE-CLOSING COVENANTS. Seller covenants and agrees with respect to the Stations that, between the date hereof and the Closing Date or the earlier termination of this Agreement in accordance with its terms, except as expressly permitted by this Agreement or required as otherwise consented to in writing by Buyer (which consent shall not be unreasonably withheld or provided otherwise by the Time Brokerage Agreement, or with the prior written consent of Buyer, delayed) Seller shall act in accordance with the following:
9.1.1 Seller shall conduct the business and operations of the Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the Stations, including but not limited to maintaining the independent identity of the Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to the date of this Agreement.
9.1.3 Except for conditions described in SCHEDULE 7.4, Seller shall operate the Stations in all respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, including the institution or written threat of any action against the Seller involving any Station or receipt of any administrative or court order relating to the Stations Assets or the Stations, Seller will promptly notify Buyer thereof and will use its reasonable best efforts to take such steps as may be necessary to remove any such impediment to the FCC's consent to the transactions contemplated by this Agreement.
9.1.5 Except Seller shall
(a) refrain from making any sale, lease, transfer or other disposition of any of the Stations Assets having a value per item in excess of $1,000, individually, and valued in excess of $5,000 in the aggregate, other than in the normal course of business at fair market value in connection with replacements of equal or greater value;
(b) refrain from modifying, amending, altering or terminating any of the Assumed Contracts or waiving any default or breach thereunder or modifying, altering or terminating, any other right relating to or included in the Stations Assets;
(c) maintain insurance on the Stations Assets against loss or damage by fire and all other hazards and risks in an amount consistent with the existing policy amounts described in SCHEDULE 9.1.5;
(d) maintain its books and records in accordance with prior practice; maintain the Stations Assets in their present condition, ordinary wear and tear excepted; maintain supplies of inventory and spare parts relating to the Stations consistent with past practices; and, except as otherwise specifically provided in this Agreement, otherwise operate the Stations in the ordinary course in accordance with past practices;
(e) refrain from taking any action which is not in the usual and ordinary course of business regarding the Stations Assets or which could reasonably be expected to materially adversely affect the value of the Stations Assets;
(f) refrain from hiring, firing, releasing or transferring any employee of the Station identified by an asterisk on Schedule 7.14;
(g) refrain from (i) increasing the compensation payable or to become payable to any of Seller's employees in a manner inconsistent with past practices, or (ii) entering into any renewal or amendment of any existing contract for changes the employment of any employee identified by an asterisk on Schedule 7.14 other than in the ordinary course of business;
(h) promptly notify Buyer upon Seller's becoming aware of the resignation or actions contemplated resignation of any employee identified by an asterisk on Schedule 7.14;
(i) refrain from changing its charter in any way which would adversely affect its corporate power or authority to enter into and perform this Agreement or which would otherwise adversely affect its performance of this Agreement;
(j) refrain from subjecting any of the Stations Assets to any new or increased lien, claim, charge, or encumbrance (other than minor liens, claims, charges or encumbrances which will not materially interfere with the occupation, use and enjoyment by Buyer of the Stations Assets in the normal course of its business or impair the value of the Stations Assets and which shall be discharged as of the Closing Date);
(k) refrain from doing or omitting to do any act which will cause a breach of, or default under, or termination of, any material Assumed Contract;
(l) refrain from entering into any Trade-Out Agreement not in effect on the date hereof and listed on SCHEDULE 7.9, having a value in excess of $1,000, individually, or an aggregate value in excess of $5,000 (except for Trade-Out Agreements which are fully performed by Seller prior to the Closing Date);
(m) refrain from entering into any other contract or agreement not in effect on the date hereof and listed on SCHEDULE 7.8 OR 7.9, except for (i) contracts entered into in the ordinary course of business consistent which do not involve consideration having an aggregate value in excess of $10,000 and which may be terminated on not more than ninety (90) day's notice without premium or penalty and (ii) contracts for the sale of advertising time for cash entered into in the ordinary course of business;
(n) provide to Buyer, concurrently with past practicesfiling thereof, copies of all reports to and other filings with the FCC relating to the Stations;
(o) not permit any of the Stations Licenses to expire or to be surrendered or voluntarily modified, or take any action (or fail to take any action) which could cause the FCC or any other governmental authority to institute proceedings for the suspension, revocation or limitation of rights under any Station License; or fail to prosecute with due diligence any pending applications to any governmental authority with respect to the Stations or any such Stations Licenses, except for proceedings affecting the radio broadcasting industry generally;
(p) provide to Buyer, promptly upon receipt thereof by Seller, a copy of (i) any notice from the FCC or any other governmental authority of the revocation, suspension, or limitation of the rights under, or of any proceeding for the revocation, suspension, or limitation of the rights under (or that such authority may in the future, as the result of failure to comply with laws or regulations or for any other reason, revoke, suspend or limit the rights under) any Station License, or any other license or permit held by Seller respecting any Station, and (ii) copies of all protests, complaints, challenges or other documents filed with the FCC by third parties concerning any Station and, promptly upon the filing or making thereof, copies of Seller's responses to such filings;
(q) notify Buyer in writing immediately upon learning of the institution or written threat of any material action against Seller involving any Station in any court, or any action against Seller before the FCC or any other governmental agency, and notify Buyer in writing promptly upon receipt of any administrative or court order relating to the Stations Assets or the Stations;
(r) pay or cause to be paid or provided for when due (except to the extent contested in good faith for which proper reserves shall not: have been established) all income, property, use, franchise, excise, social security, withholding, worker's compensation and unemployment insurance taxes and all other taxes of or relating to Seller, the Stations Assets and the employees required to be paid to city, county, state, Federal and other governmental units up to the Closing Date;
(as) sell broadcast time on if requested by Buyer, with respect to any Assumed Contract (other than a prepaid basis real property lease) which can be terminated or not renewed by Seller in compliance with the terms thereof, notify the other parties to such Assumed Contract that Seller elects to terminate (or, if applicable, elects not to renew) such Assumed Contract;
(t) not change the advertising rates in effect as of the date hereof other than in the ordinary course of existing credit practices)business; and
(bu) except as set forth on Schedule 7.14, or as required use its reasonable best efforts to reduce by applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees Closing Date the trade payables of the Stations to less than $15,000; and
(providedv) within thirty (30) days following the end of each calendar month, provide Buyer with a statement of income for each Station for such month and for the year-to-date period then ended (including a comparison to budget).
9.1.6 Seller shall give or cause the Stations to give Buyer and Buyer's counsel, accountants, engineers and other representatives, at Buyer's reasonable request and upon reasonable notice, full and reasonable access during normal business hours to all of Seller's personnel, properties, books, Contracts, reports and records (including, without limitation, financial information and tax returns relating to the Stations, and environmental audits in existence with respect to the Stations Assets), real estate, buildings and equipment relating to the Stations and to the Stations' employees, and to furnish Buyer with information and copies of all documents and agreements relating to the Stations and the operation thereof (including but not limited to financial and operating data and other information concerning the financial condition, results of operations and business of the Stations, and any engineering materials in Seller's possession regarding the operations of the Stations) that Buyer may reasonably request. The rights of Buyer under this Section 9.1.6 shall not be exercised in such a manner as to interfere unreasonably with the business of the Stations.
9.1.7 Seller shall use its reasonable best efforts to obtain any third party consents necessary for the assignment of any Contract (which shall not require any payment to any such third party except for such amounts contemplated by the Contract to be assigned, and any amount then owing by Seller to such third party).
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
PRE-CLOSING COVENANTS. Seller covenants and agrees with respect (a) Subject to the Stations that, between the date hereof terms and the Closing Date or the earlier termination conditions of this Agreement in accordance with its termsand the Ancillary Agreements, except as expressly permitted by this Agreement or required by or provided otherwise by the Time Brokerage Agreementparties shall use their respective reasonable best efforts, on a cooperative basis, to take, or with cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable under applicable law to consummate the prior written consent of BuyerSecondary Sale Transaction as soon as reasonably practicable, Seller shall act in accordance with recognizing that it is intended to close on the following:
9.1.1 Seller shall conduct same date as the business and operations of the Stations in the ordinary and prudent course of business consistent with past practice and with the intent of preserving the ongoing operations and assets of the StationsMerger Closing Date, including but not limited to maintaining the independent identity of the Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i) preserve the operation of the Stations intact; (ii) preserve the business of the Stations' advertisers, customers, suppliers and others having business relations with the Stations; and (iii) continue to conduct financial operations of the Stations, including without limitation, using their credit and collection and pricing policies and practices, all in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, Seller shall not discount its accounts receivable, accelerate its efforts to collect accounts receivable or take any other action or use any other collection method not regularly taken or used by it in the ordinary course of business prior to the date of this Agreement.
9.1.3 Seller shall operate the Stations in all respects in accordance with FCC rules and regulations and the Stations Licenses and with all other laws, regulations, rules and orders, and shall not cause or permit by any act, or failure to act, any of the Stations Licenses to expire, be surrendered, adversely modified, or otherwise terminated, or the FCC to institute any proceedings for the suspension, revocation or adverse modification of any of the Stations Licenses, or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the FCC to deny its consent to the transactions contemplated by this Agreement come to Seller's attention, Seller will promptly notify Buyer thereof and will use its respective reasonable best efforts to take such obtain and maintain all necessary actions or nonactions, waivers, waiting period expirations or terminations, consents and approvals, including any governmental approvals from any governmental authorities, and the making of all necessary registrations and filings and the taking of all steps as may be necessary to remove obtain an approval or waiver from, or to avoid an action or proceeding by, any governmental authority; provided, however, that notwithstanding any provision of this Agreement, no party shall have any obligation to offer or agree to any commitment or arrangement, or any term, condition, limitation or restriction of any type or nature, that would reasonably be expected to constitute or result in any impediment with respect to such impediment party or any of its affiliates.
(b) The parties shall cooperate in the determination of which registrations, filings and governmental approvals are necessary to consummate the FCC's consent to Secondary Sale Transaction and the transactions contemplated by this the Ancillary Agreements and the preparation of any such registrations or filings or such applications for the governmental approvals and any other orders, clearances, consents, notices, rulings, exemptions, certificates, no-actions letters and approvals reasonably deemed by any of parties to be necessary to discharge their respective obligations under the Agreement or otherwise advisable under applicable law in connections with the transactions contemplated by the Agreement.
9.1.5 Except for changes (c) If the Purchaser determines that the notification and waiting period requirements of the HSR Act would be required in connection with its acquisition of the Shares pursuant to this Agreement, then the Company and the Purchaser shall, or actions shall cause their ultimate parent entities as that term is defined in the ordinary course HSR Act to, file as soon as reasonably practicable the Notification and Report Forms required by the HSR Act (the "HSR Filings"). Each of business consistent the Purchaser and the Company shall (i) promptly supply the other with past practicesany information which may be required by the other in order to complete its HSR Filing and (ii) submit promptly any additional information which may be reasonably requested by any such governmental authority in connection with the HSR Filings.
(d) Prior to making any filings with the Securities and Exchange Commission or other public statements, press releases or similar communications to the extent that they mention Purchaser or its affiliates, the Company and Seller shall not: (a) sell broadcast time provide Purchaser a reasonable opportunity to review and comment on a prepaid basis (other than such portions of filings, statements, press releases or similar communications; provided that no prior review and comment by Purchaser shall be required to the extent that the public statements, press releases and communications are consistent in the course of existing credit practices); (b) except as set forth on Schedule 7.14all material respects with prior public filings, statements, press releases or as required communications previously approved by applicable law or written agreements currently in effect, grant or agree to grant any general increases in the rates of salaries or compensation payable to employees of the Stations (providedPurchaser for public dissemination.
Appears in 1 contract