Actions Prior to Closing From the date hereof until the Closing Date, Contributor shall not take any action or fail to take any action the result of which could (1) have a material adverse effect on the Contributed Interests or the Operating Partnership’s ownership thereof, or any Material Adverse Effect on any Contributed Entity or Property after the Closing Date or (2) cause any of the representations and warranties contained in this Section 2.2 to be untrue as of the Closing Date.
Operations Prior to Closing (a) Seller agrees to operate the Property between the Execution Date and the Closing Date in the same general manner as Seller has operated the Property during the immediately preceding six (6) month period, paying all costs and expenses as they come due, and in any event prior to Closing, and maintaining all insurance coverage currently in force. (b) Seller shall comply with all of the obligations of landlord under the Leases and all other agreements and contractual arrangements affecting the Real Property by which Seller is bound or to which the Real Property, or any of them, are subject, and which will be binding upon Buyer or a lien upon such Real Property, after the Closing. (c) Seller shall notify Buyer promptly of Seller's receipt of any notice from any party alleging that Seller is in default of its obligations under any of the Leases or any Permit or agreement affecting the Real Property, or any portion or portions thereof. (d) No contract for or on behalf of or affecting the Real Property shall be negotiated or entered into which cannot be terminated by Seller upon the Closing without the payment of a specific charge, cost, penalty or premium for such termination. (e) Except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, Seller shall not enter into any new leases for any portion of the Real Property. Any new lease shall be on Buyer's customary form (which may vary to reflect customary negotiated revisions thereto), or such other form which is reasonably acceptable to Buyer. Further, except with the prior written consent of Buyer, which Buyer agrees it shall not unreasonably withhold, condition or delay, or as set forth above, Seller shall not amend, extend (except where required under the terms of the Lease in question), terminate (except by reason of a tenant's default), accept surrender of, or permit any assignments or subleases of, any of the Leases (except as may be required under such Lease), nor accept any rental more than one (1) month in advance (exclusive of any security deposit). (f) Seller shall not make or permit to be made any capital improvements or additions to the Real Property, or any portion thereof, without the prior written consent of Buyer, except those made by Seller pursuant to the express requirements of this Agreement, those made by tenants pursuant to the right to do so under their Leases, or by Seller if required by applicable law or ordinance, or as required under any Lease. (g) Seller shall timely xxxx all tenants for all rent billable under Leases, and use commercially reasonable efforts to collect any rent in arrears. (h) Seller shall notify Buyer of any tax assessment disputes (pending or threatened) prior to Closing, and from and after the Due Diligence Expiration Date, Seller not agree to any changes in the real estate tax assessment, nor settle, withdraw or otherwise compromise any pending claims with respect to tax assessments relating to the current or any subsequent year, without Buyer's prior written consent, which shall not be unreasonably withheld, delayed or conditioned. If any proceedings shall result in any reduction of assessment and/or tax for the tax year in which the Closing occurs, it is agreed that the amount of tax savings or refund for such tax year, less the reasonable fees and disbursements in connection with such proceedings, shall be apportioned between the parties as of the date real estate taxes are apportioned under this Agreement. All refunds relating to any tax year prior to the Closing shall be the sole property of Seller, and all refunds relating to any year subsequent to the year in which Closing occurs shall be the sole property of Buyer. Each party agrees to promptly remit to the other any refund received by it which is the property of the other. (i) Seller shall notify Buyer promptly of the occurrence of any of the following: (i) Receipt of notice from any governmental or quasi-governmental agency or authority or insurance underwriter relating to the condition, use or occupancy of the Real Property, or any portion thereof; (ii) Receipt of any notice of default from any tenant or from the holder of any lien or security interest in or encumbering the Real Property, or any portion thereof; (iii) Notice of any actual or threatened litigation against Seller or affecting or relating to the Real Property, or any portion thereof which may materially and adversely affect the Real Property or Seller's ability to consummate the transactions contemplated by this Agreement; and (iv) Vacancy of any demised Property by a tenant, other than in accordance with a scheduled lease termination.
Operations Prior to the Closing Date (a) From the ------------------------------------ date hereof through the Closing Date, Parent shall cause the Companies to operate and carry on the Business in the ordinary course in accordance with past practice and in compliance with all applicable Requirements of Law, including Environmental Laws. Consistent with the foregoing, Parent shall cause each of the Companies to use its reasonable efforts consistent with good business practice to (i) maintain the business organization of the Companies intact, (ii) keep available the services of any key employees of the Companies and (iii) preserve the goodwill and beneficial relationships of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Companies. (b) Notwithstanding Section 7.4(a), except as set forth in Schedule -------------- -------- 7.4, except as contemplated by this Agreement or except with the express written --- approval of Buyer (which, in the case of clauses (ii), (iii), (vi), (ix), (x) and (xviii), Buyer agrees shall not be unreasonably withheld or delayed), Parent shall cause each of the Companies not to: (i) make any material change in the Business or its operations, except such changes as may be required to comply with any applicable Requirements of Law; (ii) make any capital expenditure or enter into any contract or commitment therefor, other than in the ordinary course of the Business, which is in excess of $50,000; (iii) other than in the ordinary course of the Business, enter into any contract, agreement, undertaking or commitment which would have been required to be set forth in Schedule 5.14(a) or 5.14(b) if in effect on the ---------------- ------- date hereof or amend any Business Agreement in any material respect; (iv) enter into any contract that contains a "change of control" provision that would give the other party a right to terminate such contract upon the consummation of the transactions contemplated hereby or under which the consummation of the transactions contemplated hereby would constitute a default; (v) enter into any contract for the purchase of real property or exercise any option to extend a lease listed in Schedule 5.9; ------------ (vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers to any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of its properties, rights or assets, other than inventory and minor amounts of personal property sold or otherwise disposed of in the ordinary course of the Business consistent with past practice and other than Permitted Encumbrances; (vii) cancel any debts owed to or claims held by it or pay, settle or discharge any claims/litigation, proceedings, actions or liabilities, other than in the ordinary course of the Business consistent with past practice; (viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness for Borrowed Money (other than money borrowed or advances from any of its Affiliates in the ordinary course of the Business consistent with past practice) or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13); (ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of the Business consistent with past practice; (x) delay or accelerate payment of any account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice; (xi) make, or agree to make, any distribution of assets (other than cash) to Parent or any of its Affiliates; (xii) institute any increase in any benefit provided, or loan or advance any money or property, to any present or former director, officer, consultant or employee of any of the Companies, other than in the ordinary course of the Business consistent with past practice or as required by any Company Plan, Parent Plan or Requirements of Law; (xiii) make any material change in the compensation of its employees, other than changes made in accordance with normal compensation practices of the Companies or pursuant to existing contractual commitments and consistent with past compensation practices, or grant any severance or termination pay to any of its employees or amend the form of retention and severance agreement contained in Schedule 7.4; ------------ (xiv) establish, adopt, enter into, amend or terminate any Company Plan, or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Plan if it were in existence on the date hereof, other than in the ordinary course of the Business consistent with past practice or as required by any Company Plan, Parent Plan or Requirement of Law; (xv) make any material change in the accounting policies applied in the preparation of the Interim Financial Statements, unless such change is required by GAAP; (xvi) make any change in its charter, by-laws or other organizational document or issue any capital stock (or securities exchangeable, convertible or exercisable for capital stock); (xvii) split, combine or reclassify any shares of its capital stock or partnership or membership interests or declare, set aside or pay any dividends or make any other distributions (whether in cash, stock or other property) in respect of such shares or interests, except for cash dividends and distributions payable by a Conveyed Companies Subsidiary to any of the Companies, Parent or Affiliates of Parent; (xviii) except as required by law, and except in cases where doing so would not have a material adverse consequence to Buyer Group Members with respect to taxable years or periods beginning after the Closing Date or, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date, file any Tax Return in a manner inconsistent with past practice or take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in prior periods in filing Tax Returns (including any such position, election or method which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Parent is liable); (xix) amend any Tax Returns or settle or compromise any proceeding relating to Tax liabilities of any Company, in either case if doing so would, or would reasonably be expected to, materially adversely affect any Buyer Group Member with respect to taxable years or periods beginning after the Closing Date or, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date; (xx) enter into or amend any aviation, manufacturing or transportation customer contract, other than new contracts with existing customers and amendments to existing contracts, in each case, where the terms of such new contract or amendment are not materially less favorable to the Companies than existing contracts with such customers; (xxi) enter into any joint venture, partnership or similar arrangement or acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, limited liability company, partnership, joint venture association or other business organization or division thereof; (xxii) merge or consolidate with or into any other Person or dissolve or liquidate; or (xxiii) authorize, commit or agree, whether in writing or otherwise, to do any of the foregoing.
Termination Prior to Closing Notwithstanding the foregoing, the parties will be relieved of the obligation to consummate the Closing and purchase or sell the Assets: (a) By the mutual written consent of the Buyer and the Seller; (b) By the Seller in writing, without liability, if the Buyer (i) fails to perform in any material respect its agreements contained herein required to be performed by it on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Seller has notified the Buyer of its intent to terminate this Agreement pursuant to this subparagraph; (c) By the Buyer in writing, without liability, if the Seller (i) fails to perform in any material respect its agreements contained herein required to be performed by them on or prior to the Closing Date, or (ii) materially breaches any of its representations, warranties or covenants contained herein, which in either case is not cured within ten (10) days after the Buyer has notified the Seller of its intent to terminate this Agreement pursuant to this subparagraph; (d) Subject to Section 5.5 hereof, by either the Seller or the Buyer in writing, without liability, if there is issued any order, writ, injunction or decree of any court or governmental or regulatory agency binding on the Buyer or the Seller which prohibits or materially restrains the Buyer or the Seller from consummating the transactions contemplated hereby; provided that the Buyer and the Seller have used their reasonable, good faith efforts to have any such order, writ, injunction or decree lifted and the same has not been lifted within sixty (60) days after entry, by any such court or governmental or regulatory agency; (e) By the Buyer in writing, without liability, if Buyer elects to terminate pursuant to Section 6.1 or Section 6.2 hereof; (f) By either the Seller or the Buyer in writing, without liability, if for any reason the Closing has not occurred by March 31, 1999 other than as a result of the breach of this Agreement by the party attempting to terminate this Agreement; (g) By Seller in writing, without liability, upon a "Change of Control" of Buyer (for purposes of this Agreement, a "Change of Control" means (i) the acquisition by any individual, corporation, company, association, joint venture or other entity, of beneficial ownership of 25% or more of the voting securities of the Buyer; or (ii) individuals who, as of the date of this Agreement, constitute the Board of Directors of the Buyer cease for any reason to constitute at least a majority of the Board of Directors of the Buyer; or (iii) the consummation by the Buyer of a reorganization, merger or consolidation, or exchange of shares or sale or other disposition of all or substantially all of the assets of the Buyer, if immediately after giving effect to such transaction the individuals or entities who beneficially own voting securities immediately prior to such transaction beneficially own
Conditions Precedent to the Closing Date The obligations of each L/C Issuer and each Lender to make the initial Credit Extensions on the Closing Date (if any) shall, in each case, be subject to the following conditions: (a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by an Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent: (i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days prior to the Closing Date; (ii) executed copies of (x) this Agreement, and (y) each Security Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with: (A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and (B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Security Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Officer thereof authorized to act as an Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iv) an opinion from (A) Milbank LLP, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Administrative Agent; (v) a certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions, from the Chief Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit J; (vi) a certificate attesting to the compliance with clauses (d), (e), (f) and (h) of this Section 4.01 on the Closing Date from an Officer of the Borrower; and (vii) if any Loans are to be made on the Closing Date, a Committed Loan Notice pursuant to Section 2.02. (b) All reasonable fees and out-of-pocket expenses due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to Agency Fee Letter shall have been paid or shall have been authorized to be deducted from the proceeds of the initial funding under the Facilities, so long as any such fees or expenses not expressly set forth in the Agency Fee Letter have been have been invoiced not less than three business days prior to the Closing Date. (c) The Administrative Agent and the Lenders shall have received at least three Business Days prior to the Closing Date, to the extent requested in writing at least seven Business Days prior to the Closing Date, all documentation and other information that the Administrative Agent and the Lenders reasonably determine is necessary in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Act and the Beneficial Ownership Regulation. (d) The representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects. (e) There has been no change, occurrence or development since September 30, 2020 that could reasonably be expected to have a Material Adverse Effect. (f) At the time of and immediately after giving effect to the Transactions, no Default shall have occurred and be continuing. (g) [Reserved]. (h) Prior to or substantially concurrently with the Closing Date, (i) the 2026 Senior Secured Notes shall have been issued and (ii) the Existing Credit Agreement shall have been paid off in full and terminated and all liens thereunder shall have been released pursuant to a customary payoff letter reasonably satisfactory to the Administrative Agent.
COVENANTS PRIOR TO CLOSING 37 7.1 Access and Cooperation; Due Diligence...........................37 7.2 Conduct of Business Pending Closing.............................38 7.3
Conditions to the Closing Date The obligations of the Lenders to make Loans and of the Issuing Bank to make LC Credit Extensions hereunder shall become effective on the first date when each of the following conditions is satisfied (or waived in accordance with Section 9.02): (a) The Administrative Agent shall have received the following, each of which shall be originals, telecopies or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, each dated a date on or prior to the Closing Date and each in form and substance satisfactory to the Administrative Agent and the Arrangers: (i) executed counterparts of this Agreement from the Borrower; (ii) a promissory note executed by the Borrower in favor of each Lender requesting three Business Days in advance a promissory note evidencing the Loan provided by such Lender; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party; (iv) a certificate of good standing for the Borrower from its jurisdiction of organization; (v) a certificate signed by the Chief Financial Officer of the Borrower certifying (A) as to the solvency of the Borrower and its Subsidiaries (on a consolidated basis) after giving effect to the Transaction and the incurrence of all Indebtedness related thereto, (B) as to the Debt Rating then in effect and (C) that the conditions specified in Section 4.02(a) and (b) have been satisfied; (vi) a favorable opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Borrower, and the general counsel of the Borrower, addressed to the Administrative Agent and each Lender, in form set forth on Exhibit C and substance reasonably satisfactory to the Administrative Agent; and (vii) evidence that the Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being released (the “Refinancing”). (b) The Borrower shall have received not less than $1,000.0 million in gross cash proceeds from the sale of the Senior Notes. (c) All accrued fees and expenses of the Administrative Agent and the Arrangers (including the fees and expenses of counsels for the Administrative Agent, the U.S. Lead Arrangers and the Nordic Lead Arrangers and local and special counsel for the Administrative Agent and the Arrangers) shall have been paid. The Borrower shall have paid all items then due and payable under the Fee Letter. (d) The Administrative Agent shall have received a Borrowing Request in accordance with the requirements of Section 2.03 hereof.
Conditions Precedent to the Closing The obligations of each Noteholder to consummate the transactions contemplated by the Transaction Documents are subject to the satisfaction or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedent: (a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree. (b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing. (c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders. (d) The representations and warranties of the Company set forth in ARTICLE V shall be true and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect. (e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect. (f) No Default or Event of Default shall have occurred and be continuing. (g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement. (h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement.
Seller’s Closing Documents At the Closing, Seller shall deliver to Purchaser the following, in form and substance reasonably acceptable to Purchaser: (a) A special warranty deed executed by Seller (the “Deed”), in a form customary for the jurisdiction where the Property is located and otherwise satisfactory to Seller, Purchaser and Title Insurer, free and clear of all liens, encumbrances, security interests, options and adverse claims of any kind or character except the Permitted Encumbrances and the encumbrance of the Assumed Loan. (b) A Xxxx of Sale, executed by Seller (the “Xxxx of Sale”) in the form attached hereto as Exhibit O, transferring, conveying and assigning and warranting to Purchaser, the Personal Property, free and clear of all liens, encumbrances, security interests, options and adverse claims of any kind or character other than the Permitted Encumbrances and the encumbrance of the Assumed Loan, together with the original certificates of title thereto, if any. (c) An assignment (the “Contract Assignment”) in the form attached hereto as Exhibit P, executed by Seller, to Purchaser, of (i) those of the Contracts which Purchaser has elected in writing to assume (the “Assigned Contracts”) with the agreement of Seller to indemnify, protect, defend and hold Purchaser harmless from and against any and all claims, damages, losses, costs and expenses (including attorneys’ fees) arising in connection with the Assigned Contracts and related to the period prior to the Closing and a comparable indemnity from Purchaser relating to the period following the Closing, (ii) any and all guarantees and warranties used or made in connection with the operation, construction, improvement, alteration or repair of the Property, and (iii) all right, title and interest of Seller and its agents in and to the Intangible Personal Property (including the Governmental Approvals to the extent assignable). (d) An assignment of lessor’s interest in the Leases (the “Lease Assignment”) in the form attached hereto as Exhibit Q executed by Seller, to Purchaser, together with an agreement by Seller to indemnify, protect, defend and hold Purchaser harmless from and against any and all claims, damages, losses, costs and expenses (including attorneys’ fees) arising in connection with the Leases relating to the period prior to the Closing and a comparable indemnity from Purchaser relating to the period following the Closing. (e) To the extent not previously delivered to Purchaser, originals of the Leases, the Contracts which have not been terminated pursuant to Section 9(c), certificate(s) of occupancy and other instruments evidencing the Governmental Approvals in Seller’s possession or, if such originals are not available, copies certified by Seller to be true, correct and complete copies of such originals. (f) Any keys in the possession of Seller to all locks located in the Property. (g) Letters executed by Seller and Seller’s management agent, if any, addressed to all Tenants, in form of Exhibit R attached hereto, notifying and directing payment of all rent and other sums due from Tenants from and after the date of the Closing to be made at Purchaser’s direction. (h) Reasonable proof of the due authorization, execution and delivery by Seller of this Agreement and the documents delivered by Seller pursuant hereto. (i) A Rent Roll, prepared not more than one (1) business day prior to Closing, certified by Seller to be true and correct. (j) An affidavit from Seller in the form attached hereto as Exhibit L certifying that such Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code.
Conduct Prior to the Effective Time 5.1 Conduct of Business by Company, Indirect Parent, Second Intermediary -------------------------------------------------------------------- Parent, First Intermediary Parent and Parent. During the period from the date -------------------------------------------- of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, Indirect Parent, Second Intermediary Parent, First Intermediary Parent and Parent shall cause the Company to and the Company shall, except to the extent that Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), carry on its business, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. In addition, except as permitted by the terms of this Agreement, and the transactions contemplated hereby, without the prior written consent of Purchaser, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, neither Indirect Parent, Second Intermediary Parent, First Intermediary Parent nor Parent shall permit the Company to, and Company shall not do any of the following: (a) With respect to Indirect Parent, Second Intermediary Parent, First Intermediary Parent or Parent, waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans to any employee, consultant or director of the Company, except as provided for under this Agreement or the attached exhibits; (b) Grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to Purchaser, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof or hire any new employees or consultants; (c) Transfer or license to any person or entity or otherwise extend, amend or modify any rights to the Company Intellectual Property, or enter into grants to transfer or license to any person future patent rights; (d) Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock; (e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of Company; (f) Issue, deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing with respect to any shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares; (g) Cause, permit or propose any amendments to the Company Charter Documents; (h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to enter into any joint ventures, strategic partnerships or alliances; (i) Sell, lease, license, encumber or otherwise dispose of any properties or assets except sales of inventory in the ordinary course of business consistent with past practice; (j) Incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Company, enter into any "keep well" or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing other than in connection with the financing of ordinary course trade payables by Indirect Parent, Second Intermediary Parent, First Intermediary Parent or Parent; (k) Adopt or amend any material employee policy or arrangement, or enter into any employment contract or collective bargaining agreement (other than offer letters and letter agreements entered into in the ordinary course of business consistent with past practice with employees who are terminable "at will"), pay any special bonus or special remuneration to any director or employee, or, except in the ordinary course of business consistent with past practice, increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants; (i) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, or liabilities recognized or disclosed in the most recent consolidated financial statements (or the notes thereto) of Company as provided to the Purchasers or incurred since the date of such financial statements, or (ii) waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce any confidentiality or similar agreement to which Company is a party or of which Company is a beneficiary; (m) Make any individual or series of related payments outside of the ordinary course of business in excess of $10,000; (n) Except in the ordinary course of business consistent with past practice, modify, amend or terminate any Material Contract or agreement to which Company is a party or waive, delay the exercise of, release or assign any material rights or claims thereunder; (o) Enter into, renew or materially modify any contracts, agreements, or obligations relating to the distribution, sale, license or marketing by third parties of Company's products or products licensed by Company other than renewals of existing nonexclusive contracts, agreements or obligations; (p) Except as required by GAAP, revalue any of its assets or make any change in accounting methods, principles or practices; (q) Incur or enter into any agreement, contract or commitment requiring Company to pay in excess of $10,000, excluding routine purchase orders consistent with past practices; (r) Settle any material litigation; (s) Make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any Tax Returns or any amendment to any Tax Return other than in a manner consistent with prior practices, enter into any closing agreement, settle any claim or assessment in respects of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; (t) Agree in writing or otherwise to take any of the actions described in Section 5.1(a) through (s) above.
