Common use of Conduct of Business By Holdings Clause in Contracts

Conduct of Business By Holdings. Holdings shall (i) engage in any business or (ii) own any material assets other than (a) the Capital Stock of Company and (b) Cash and Cash Equivalents or (iii) have any Indebtedness, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under the Guaranty or the Security Agreement and (b) customary indemnifications of officers and directors: THEN (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7 with respect to Company, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to Company, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii). In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided.

Conduct of Business By Holdings. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing (which agreement shall not be unreasonably withheld), or as otherwise expressly contemplated by this Agreement, including, without limitation, Article IV hereof, or as set forth in Section 5.2 of the Holdings Disclosure Schedule, Holdings shall conduct, and cause each of its Subsidiaries to conduct, its business only in the ordinary and usual course consistent in all material respects with past practice, and Holdings shall use, and cause each of its Subsidiaries to use, its reasonable efforts to preserve intact the present business organization, keep available the services of its present officers and key employees, and preserve their existing business relationships. Holdings shall promptly give the Company written notice of the existence or occurrence of any condition which might reasonably be expected to prevent the consummation of the transactions contemplated hereby. Without limiting the generality of the foregoing, unless the Company shall otherwise agree in writing (iwhich agreement shall not be unreasonably withheld), or as otherwise expressly contemplated by this Agreement or as set forth in Section 5.2 of the Holdings Disclosure Schedule, prior to the Effective Time Holdings shall not, nor shall it permit any of its Subsidiaries to: (a)(i) engage in any business except for the filing of the Holdings Charter and the Acquisition Charter, amend its Certificate of Incorporation, as amended, By-Laws or other organizational documents, (ii) own split, combine or reclassify any material assets shares of its outstanding capital stock unless all share numbers contained in or contemplated by this Agreement shall be correspondingly adjusted, (iii) declare, set aside or pay any dividend or other than distribution payable in cash, stock or property, or (aiv) directly or indirectly redeem or otherwise acquire any shares of its capital stock or shares of the Capital Stock capital stock of Company and any of its Subsidiaries; (b) Cash authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell or agree to issue or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock or shares of the capital stock of any of its Subsidiaries (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for the granting of options to purchase up to a number of shares of Holdings Common Stock pursuant to any stock option plan equal to the number of outstanding Substitute Company Options with an exercise price above the Closing Price of the Company A-28 29 outstanding on the Effective Date divided by 0.275 and Cash Equivalents such options shall not exceed 150,000 without the consent of the Company, which consent shall not be unreasonably withheld; (c)(i) merge, combine or consolidate with another entity, (ii) acquire or purchase an equity interest in or a substantial portion of the assets of another corporation, partnership or other business organization or otherwise acquire any assets outside the ordinary course of business and consistent with past practice or otherwise enter into any material contract, commitment or transaction outside the ordinary course of business and consistent with past practice or (iii) have sell, lease, license, waive, release, transfer, encumber or otherwise dispose of any Indebtednessof its material assets outside the ordinary course of business and consistent with past practice; (d)(i) incur, Liens (assume or prepay any material indebtedness or any other material liabilities other than Permitted Encumbrancesin each case in the ordinary course of business and consistent with past practice, (ii) assume, guarantee, endorse or Contingent Obligations otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person other than a Subsidiary of Holdings, in each case other than in the ordinary course of business and consistent with past practice or (aiii) make any loans, advances or capital contributions to, or investments in, any other person, other than to any Subsidiary of Holdings; (e) pay, satisfy, discharge or settle any material claim, liabilities or obligations (absolute, accrued, contingent or otherwise), other than either in the ordinary course of business and consistent with past practice or pursuant to mandatory terms of any Holdings Contract in effect on the Original Execution Date; (f) modify or amend, or waive any benefit of, any non-competition agreement to which Holdings or any of its Subsidiaries is a party; (g) permit any insurance policy naming Holdings or any Subsidiary of Holdings as a beneficiary or a loss payee to be canceled or terminated other than in the ordinary course of business and provided that replacement policies which the Company deems to be commercially appropriate under all relevant circumstances are obtainable for such canceled or terminated policies; (h) make any significant change in its accounting or tax policies or procedures and shall not reverse the Guaranty amount of any existing reserves, except as required by law or the Security Agreement and (b) customary indemnifications of officers and directors: THEN to comply with GAAP; (i) upon acquire any shares of capital stock of the occurrence of Company; or (j) enter into any Event of Default described in subsection 8.6 contract, agreement, commitment or 8.7 arrangement with respect to Company, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to Company, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminateforegoing; provided however, that the foregoing this Section 5.2 shall not affect in prohibit Holdings nor any way of its Subsidiaries from entering into and performing the obligations of Revolving Lenders under subsection 3.3C(i) Pack Boot Agreement or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii)Consignment Agreement. In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided.ARTICLE VI

Conduct of Business By Holdings. Holdings shall (i) engage in any business other than (a) the ownership of the Capital Stock of the Company and Arris, the payment of taxes and the provision of administrative services to the Company, Arris and their respective Subsidiaries in the ordinary course of business and of the type typical for holding companies similar to Holdings and (b) entering into and performing its obligations under and in accordance with the Loan Documents and Reorganization Documents to which it is a party, or (ii) own any material assets other than (a) the Capital Stock capital stock of Company and (b) Cash and Cash Equivalents or (iii) have any Indebtedness, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under the Guaranty or the Security Agreement and (b) customary indemnifications membership interests of officers and directorsArris: THEN (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7 with respect to Company8.7, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Companyeach Borrower, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue obtain the issuance of any Letter of Credit and the right of any Lender to issue enter into any Letter of Credit hereunder Guaranty shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to CompanyBorrowers, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue obtain the issuance of any Letter of Credit and the right of any Lender to issue enter into any Letter of Credit hereunder Guaranty shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii2.1A(ii). In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided. Notwithstanding anything contained in the second preceding paragraph, if at any time within 60 days after an acceleration of the Loans pursuant to clause (ii) of such paragraph Borrowers shall pay all arrears of interest and all payments on account of principal which shall have become due otherwise than as a result of such acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rates specified in this Agreement) and all Events of Default and Potential Events of Default (other than non-payment of the principal of and accrued interest on the Loans, in each case which is due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to Borrowers, may at their option rescind and annul such acceleration and its consequences; but such action shall not affect any subsequent Event of Default or Potential Event of Default or impair any right consequent thereon. The provisions of this paragraph are intended merely to bind Lenders to a decision which may be made at the election of Requisite Lenders and are not intended, directly or indirectly, to benefit Borrowers, and such provisions shall not at any time be construed so as to grant Borrowers the right to require Lenders to rescind or annul any acceleration hereunder or to preclude Administrative Agent or Lenders from exercising any of the rights or remedies available to them under any of the Loan Documents, even if the conditions set forth in this paragraph are met.

Conduct of Business By Holdings. Holdings shall (i) engage in any business other than entering into and performing its obligations incidental to, under and in accordance with the Loan Documents to which it is a party (which, for the avoidance of doubt, shall include the ability to make Restricted Junior Payments to the extent permitted by this Agreement) or related to or incidental to its ownership of Company or (ii) own any material assets other than (a) the Capital Stock of Company and Company, (b) Cash and Cash Equivalents or (iii) have any Indebtedness, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under the Guaranty or the Security Agreement and (bc) customary indemnifications assets incidental or related to its ownership of officers and directors: Company; THEN (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7 with respect to Holdings or Company, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to Company, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii). In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided.

Conduct of Business By Holdings. Holdings shall (i) engage in any business or (ii) own any material assets other than (a) the Capital Stock of investments in Company and other Persons, and (b) Cash and Cash Equivalents or (iii) have any IndebtednessEquivalents; THEN, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under the Guaranty or the Security Agreement and (b) customary indemnifications of officers and directors: THEN (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7 with respect to Company, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal subject to the maximum amount that may at any time be drawn under all Letters terms, conditions and provisions of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), Orders and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shallmay, and upon the written request or with the written consent of Requisite Lenders, by written notice to CompanyCompany and without further order of or application to the Bankruptcy Court, the Administrative Agent shall (a) declare all or any portion of the amounts described in clauses (a) through (c) above Obligations to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii). In addition to 2.1A(ii) and (b) the other Administrative Agent and the Lenders may exercise all rights and remedies afforded that it may have under this Agreement, the other Loan Documents, the Orders, and applicable law with respect to Administrative Agent in this Section 8, upon the occurrence of an such Event of Default, provided that the Administrative Agent, on behalf Agent may not exercise any remedies against any Collateral unless it shall have given five (5) Business Days’ prior written notice to Company (with a copy to counsel for the Official Creditors’ Committee appointed in the any of the LendersCases, at and to the direction United States Trustee for the District in which the Cases are pending). In any hearing regarding any exercise of rights or remedies by the Administrative Agent or the Lenders hereunder or under any of the Required Lendersother Loan Documents, each Loan Party agrees that the only issue that may require that (I) Company Cash Collateralize be raised by any party in opposition thereto shall be whether, in fact, an Event of Default has occurred and is continuing, and the Letter each Loan Party hereby waives its right to seek relief, including, without limitation, under Section 105 of Credit Usage (in an amount equal the Bankruptcy Code, to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all extent such relief would in any way impair or restrict the rights and remedies available to it, of the Administrative Agent and the Lenders set forth herein and Issuing Lenders under in the other Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided.