Common use of Conduct of Business Prior to the Closing Date Clause in Contracts

Conduct of Business Prior to the Closing Date. The LLC and the --------------------------------------------- Subsidiary agree that from the date hereof and prior to the Closing Date, and except (i) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this Agreement: (a) the business of the LLC and the Subsidiary shall be conducted in the ordinary course; (b) no change shall be made in the Articles of Organization or Operating Agreement of the Subsidiary; (c) neither the LLC nor the Subsidiary shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets of the Subsidiary; (d) neither the LLC nor the Subsidiary will take, agree to take, or do anything in the conduct of its business which would be contrary to or in material breach of any of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiary contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to the Subsidiary; and (e) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiary shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre- payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severance.

Conduct of Business Prior to the Closing Date. The LLC and the --------------------------------------------- Subsidiary agree that from the date hereof and prior to the Closing Date, and except (i) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this Agreement: (a) the business of the LLC and the Subsidiary shall be conducted in the ordinary course; (b) no change shall be made in the Articles of Organization or Operating Agreement of the Subsidiary; (c) neither the LLC nor the Subsidiary shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets of the Subsidiary; (d) neither the LLC nor the Subsidiary will take, agree to take, or do anything in the conduct of its business which would be contrary to or in material breach of any of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiary contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to the Subsidiary; and (e) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiary shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre- pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severance.

Conduct of Business Prior to the Closing Date. The LLC and During the --------------------------------------------- Subsidiary agree that period from the date hereof and prior of this Agreement to the Closing DateDate or earlier termination of this Agreement, and except as expressly contemplated or permitted by this Agreement (i) including as set forth in Schedule 6.4 heretothe Disclosure Schedule), (ii) otherwise required by law or as consented to or ------------ approved in writing by Purchaser (only to the extent that the Company enters into an authorized officer action that would require Supermajority Member Vote as provided under the terms and conditions set forth in the Restated Operating Agreement) (or, in the case of clause (b), the Operating Partnership Company) (such consent or approval not to be unreasonably withheld, conditioned or delayed), (a) or Company shall, and shall cause each Enterprise to use commercially reasonable efforts to maintain and preserve intact their business organizations, the services of its employees and its advantageous business relationships, (iiib) except as expressly required by this Agreement: Agreement (a) including as set forth in the business Disclosure Schedule), required by law or as consented to in writing by the other party, each of the LLC Company and the Subsidiary Enterprises on the one hand, and Purchaser on the other hand, shall not, and shall cause their respective subsidiaries not to, knowingly take any action that would reasonably be conducted expected to adversely affect or materially delay the ability to obtain any necessary approvals of any regulatory agency or other governmental entity required for the transactions contemplated hereby or to perform its respective covenants and agreements under this Agreement or to consummate the transactions contemplated hereby on a timely basis. Notwithstanding anything to the contrary set forth in Section 4.1 or Section 4.2 (other than Section 4.2(b), to which this sentence shall not apply), a party and its subsidiaries may take any commercially reasonable actions that such party reasonably determines are necessary or prudent for it to take or not take in response to the ordinary course; (b) no change COVID-19 Pandemic; provided, that such party shall be made in provide prior notice to the Articles of Organization or Operating Agreement other party to the extent such actions would otherwise require consent of the Subsidiary; (c) neither the LLC nor the Subsidiary shall enter into nor terminate, amend, release other party under this Section 4.1 or modify any Material Contract concerning the operations or assets of the Subsidiary; (d) neither the LLC nor the Subsidiary will take, agree to take, or do anything in the conduct of its business which would be contrary to or in material breach of any of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiary contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to the Subsidiary; and (e) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiary shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre- payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severanceSection 4.2.

Conduct of Business Prior to the Closing Date. The LLC and During the --------------------------------------------- Subsidiary agree that period from the date hereof of this Agreement and continuing through the Closing Date, except as expressly contemplated or permitted by this Agreement or to the extent that the Buyer shall otherwise consent in writing, the Sellers shall, and shall cause the Company (to the extent within the Sellers' control) to, use their reasonable best efforts to carry on the business of the Company in the ordinary course of business giving due regard to the impact of Hurricane Katrina on the Company's business operations. Without limiting the xxxxxxxity of the foregoing, during the period from the date of this Agreement and prior to the Closing DateClosing, and except (i) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required expressly permitted by this Agreement, the Sellers shall not, and shall cause the Company (to the extent within the Sellers' control) not to, without the prior written consent of the Buyer: (a) the business issue, sell, convey, assign or otherwise transfer any Purchased Units or any capital stock or other securities of the LLC and the Subsidiary shall be conducted in the ordinary courseCompany; (b) no change shall be made in pledge or otherwise allow the Articles of Organization Purchased Units to become subject to any Encumbrance, other than any Permitted Encumbrance or Operating Agreement of the SubsidiaryEncumbrance imposed by this Agreement; (c) neither the LLC nor the Subsidiary shall enter into nor terminatedeclare, amendset aside or pay any dividends on, release or modify make any Material Contract concerning the operations distributions in respect of, or assets otherwise redeem, any shares of the Subsidiaryits capital stock or other securities; (d) neither except for the LLC nor Agreement and General Release, dated January 3, 2006, by and between the Subsidiary will takeCompany and Duane Morris LLP, agree which agreement may be supplemented from time to takexxxx xx xxxxitted pursuant to the terms and provisions of such agreement, (i) issue, create, incur, assume, guarantee, endorse or do anything otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness; (ii) except in the conduct ordinary course of its business which would be contrary to business, pay, repay, discharge, purchase, repurchase or in material breach of satisfy any Indebtedness of the terms Company or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiary contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to the Subsidiary; andor (iii) modify the terms of any Indebtedness or other Liability, in each case, including without limitation entering into any agreement or arrangement with the Trustee; (e) Except without in any way obligating either Seller to have any financial obligation, (i) fail to maintain and keep in full force and effect all insurance on assets and property used in the business of the Company, all liability and other casualty insurance, and all bonds on personnel, presently carried, (ii) fail to present all material claims under such insurance policies in a proper and timely manner, (iii) breach any material obligation under such insurance policies, or (iv) enter into any agreement with respect to or settle any insurance claims; (f) fail to maintain the books and records of the Company in the ordinary course of business giving due regard to the impact of Hurricane Katrina on the Company's business operations; (g) xxxxxxxe the compensation (including bonuses) payable to any director, officer or employee of the Company, or make any special or out of the ordinary course distributions or payments to such persons; (h) enter into or amend any employment, deferred compensation, severance, special pay, consulting, non-competition or similar agreement or arrangement with any director, officer or employee of the Company; (i) directly or indirectly engage in any transaction with any Related Person of the Company; (j) enter into any transaction or enter into, modify or renew any Contract which by reason of its size, nature or otherwise is not in the ordinary course of business, giving due regard to the impact of Hurricane Katrina on the Company's business operations; (k) xxxx x material change in its accounting methods or methods of reporting income or deductions for Tax purposes, make or rescind any election related to Taxes, or prepare or file any Tax Return (or any amendment thereof) without having provided the Buyer with a copy thereof (together with supporting work papers) at least ten (10) days prior to the due date thereof for the indebtedness set forth on Schedule 6.4(e)Buyer's review and approval; or (l) agree, in writing or otherwise, to do any of the Subsidiary shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre- payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severanceforegoing.

Conduct of Business Prior to the Closing Date. The LLC and (a) Except as expressly permitted by this Agreement or with the --------------------------------------------- Subsidiary agree that prior written consent of Buyer, which consent will not be unreasonably withheld during the period from the date hereof and prior of this Agreement to the Closing Date, and except Seller shall cause the Companies to (i) conduct the Businesses in the ordinary course of business and in compliance in all material respects with all applicable Laws; (ii) use commercially reasonable efforts to maintain and preserve intact its business organization, its management, the Real Property and advantageous business relationships with its customers, suppliers and others having business dealings with it and retain the services of its officers and key employees, (iii) cooperate with Buyer and take no action that is intended to or would reasonably be expected to adversely affect or materially delay the ability of Seller or Buyer to obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or to perform its covenants and agreements under this Agreement or to consummate the transactions contemplated hereby and (iv) not take any action which might cause any representation or warranty under Article III to become untrue. (b) Without limiting the generality of Section 5.4(a) above, during the period from the date of this Agreement to the Closing Date, except as set forth in Schedule 6.4 hereto, (ii5.4(b) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent Disclosure Schedule or approval not to be unreasonably withheld) or (iii) as required otherwise permitted by this Agreement, the Companies shall not and the Seller shall not permit the Businesses to, without the prior written consent of Buyer, which consent shall not be unreasonable withheld: (ai) the business of the LLC and the Subsidiary shall be conducted in the ordinary course; (b) no change shall be made in the Articles of Organization or Operating Agreement of the Subsidiary; (c) neither the LLC nor the Subsidiary shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets of the Subsidiary; (d) neither the LLC nor the Subsidiary will take, agree to take, or do anything in the conduct of its business which would be contrary to or in material breach of any of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiary contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to the Subsidiary; and (e) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiary shall not incur any indebtedness for borrowed money, prepay or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any outstanding indebtedness for borrowed moneys on other Person; (a) except in the ordinary course of business consistent with past practice, increase in any material manner the compensation or benefits including severance benefits of any Employees, (b) pay any pension, severance or retirement benefits to Employees, or, (c) become a "term loan" basis party to, establish, amend, commence, participate in, terminate or commit itself to the adoption of any Benefit Plan; (except for scheduled payments iii) sell, transfer, pledge, lease, grant, license, mortgage, pay, encumber or required pre- payments otherwise dispose of outstanding debt)any of its properties or assets to any Person, or adopt create any Lien of any kind with respect to any such property or agree asset, including the Real Property, other than a Permitted Lien, or cancel, release or assign any indebtedness to adopt any such Person or any claims held by any such Person, in each case other than in the ordinary course of business or pursuant to contracts in force at the date of this Agreement; (iv) enter into any new employee benefit plan line of business or change in any material respect its operating policies, except as required by applicable law Law; (v) transfer ownership, or terminate the employment grant any license or contract other rights, to any person or entity of or in respect of any employee Intellectual Property; (vi) acquire (whether by merger, consolidation or contractor acquisition of stock or accrue assets or otherwise) any liability beyond corporation, partnership or other business organization or division thereof or make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (vii) amend the Closing Date organizational documents of a Company, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties; (viii) (a) amend or otherwise modify, or violate the terms of, or terminate, any Material Contract, (b) create, renew or amend any agreement or contract, other than in the ordinary course of business and cancellable without penalty on not more than thirty (30) days notice or, except as may be required by applicable Law, other binding obligation of the Companies containing (1) any material restriction on the ability of it to conduct the Businesses as they are presently being conducted or (2) any material restriction on the ability of the Companies to engage in any type of activity or business or (c) enter into any new, or amend any existing, contract, agreement or arrangement with any affiliate; (ix) commence or settle any claim, action or proceeding in excess of $5,000 individually or $10,000 in the aggregate; provided all settlements must be completed prior to Closing; (x) take any action or willfully fail to take any action that is intended, or may reasonably be expected, to result in any of the conditions to this Agreement set forth in Article VII not being satisfied; (xi) make any capital expenditure in excess of $2,000 in the aggregate or enter into any contract or commitment therefore,; (xii) enter into any contract for severancethe purchase, sale or lease of real property in the ordinary course of business; (xiii) fail to keep in force insurance policies providing insurance coverage with respect to the assets, operations and activities of the Companies as currently in effect; or (xiv) agree to take, make any commitment to take, or adopt any resolutions of its board of directors or members in support of, any of the actions prohibited by, or any material action in furtherance of any of the actions prohibited by, this Section 5.4(b).

Conduct of Business Prior to the Closing Date. The LLC (a) Except (A) as set forth on Schedule 7.1, (B) as required by applicable Law, (C) as required or contemplated by this Agreement or the other Company Transaction Agreements, (D) for the transfer of cash from the Company Group Members to the Sellers, or (E) with the prior written consent of the Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), from the date of this Agreement until the Closing, Utah Holding shall, and shall cause each Company Group Member to: (i) conduct its business in the Ordinary Course of Business and in compliance with all applicable Laws in all material respects; (ii) use commercially reasonable efforts to preserve the goodwill of those having business relationships with it, to preserve, maintain, and protect its assets and to keep available the services of its employees; (iii) maintain its books and records in the Ordinary Course of Business; (iv) promptly notify the Buyer in writing of the commencement or written threat of any Proceedings involving any Company Group Member or the transactions contemplated hereby; and (v) pay, discharge and satisfy all accounts payable, Taxes or contractual obligations of the Company Group Members, in each case in the Ordinary Course of Business, or in accordance with their terms. (b) Without limiting the generality of clause (a) of this Section 7.1, except (V) as set forth on Schedule 7.1, (W) as required by applicable Law, (X) as required or contemplated in this Agreement and the --------------------------------------------- Subsidiary agree that other Company Transaction Agreements, (Y) for the transfer of cash from the Company Group Members to the Sellers, or (Z) with the prior written consent of the Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), from the date hereof and prior to until the Closing Date, Utah Holding will not, and except will cause each Company Group Member not to: (i) adopt or propose any change in its certificate of incorporation or bylaws or other organizational documents, as set forth in Schedule 6.4 hereto, applicable; (ii) otherwise consented to adopt a plan or ------------ approved by an authorized officer agreement of the Operating Partnership (such consent liquidation, dissolution, merger, consolidation, restructuring, recapitalization or approval not to be unreasonably withheld) or other material reorganization; (iii) issue, sell, transfer, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class or series of any Company Group Member, or enter into any agreement or contract with respect to the foregoing, or make any other changes to its capital structure; (iv) (A) split, combine, subdivide or reclassify its outstanding shares of capital stock; or (B) declare, set aside or pay any dividend or other distribution payable in cash, stock or other property whether or not in respect of its capital stock; (v) redeem, purchase or otherwise acquire directly or indirectly any of the capital stock of any Company Group Member; (vi) make or commit to make any capital expenditure in excess of $25,000 individually or $100,000 in the aggregate; (vii) (A) grant to any director, officer, employee or consultant any increase in compensation or benefits other than as required by this Agreement: the terms of any Contract in existence on the Agreement Date (aand disclosed on the Disclosure Schedule) the business of the LLC and the Subsidiary shall be conducted or immaterial increases in compensation granted to employees or consultants in the ordinary courseOrdinary Course of Business; (B) enter into, adopt or amend any employment agreement, severance agreement or policy or retention agreement other than the making of offers of employment on an at-will basis in the Ordinary Course of Business; (C) pay or agree to pay any severance, bonus, fringe benefits or other payments (other than salary or fees paid in the Ordinary Course of Business or as required by the terms of any Contract in existence on the Agreement Date and disclosed on the Disclosure Schedule) to any directors, officers, employees, consultants or other Persons; (D) enter into (or adopt) any new, or amend any existing Compensation and Benefit Plan or Foreign Plan except as required by Law; or (E) hire any employee on a basis other than “at-will” employment; (bviii) no change shall be made acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any equity interest in or the Articles assets of Organization any other business or Operating Agreement of the SubsidiaryPerson or division thereof or create any subsidiary; (cix) neither sell, lease, encumber (including by the LLC nor grant of any option thereon) or otherwise dispose of any tangible or intangible assets or property except pursuant to existing contracts or commitments or with respect to the Subsidiary shall enter into nor terminatesale of products or services of the Company Group Members in the Ordinary Course of Business; (x) (A) incur or assume any Indebtedness, amend(B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than endorsements of checks in the Ordinary Course of Business); (C) guarantee or endorse the obligations of any other Person; (D) make or cancel, release or modify waive any Material Contract concerning rights with respect to, any loans, advances or capital contributions to, or investments in, any other Person other than advancement of travel and similar expenses in the operations Ordinary Course of Business; (E) pledge or otherwise encumber shares of capital stock of any Company Group Member, except for Permitted Encumbrances; or (F) mortgage or pledge any of its tangible or intangible assets of the Subsidiaryor properties; or (G) cancel, release or assign any liabilities, obligations or Indebtedness payable to any Company Group Member; (dxi) neither mortgage or pledge or grant a security interest in any of its assets or create any Encumbrance thereon, other than Permitted Encumbrances; (xii) enter into a new (A) license or other Contract with respect to the LLC nor the Subsidiary will take, agree to takeIntellectual Property owned by any Company Group Member, or do anything (B) consulting or independent contracting arrangement, in the conduct case of its business which would be contrary to each of clauses (A) and (B) other than in the Ordinary Course of Business; (xiii) except for the continuation of at-will employment arrangements in the Ordinary Course of Business, directly or indirectly, engage in material breach any transaction with, or enter into any Contract with, any director, officer, stockholder or Affiliate of any of Company Group Member or any individual known to the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiary contained herein Company to be an immediate family member of any such Person; (xiv) change any method of accounting or become untrue accounting practice or policy used by it except any change required by reason of a change in GAAP or Law; (xv) change in any material respect any cash management practices or which otherwise delay in any material respect payment of any accounts payable or other liability of any Company Group Member or Contract beyond its due date or the date when such liability would result have been paid in a Material Adverse Effect the Ordinary Course of Business; (xvi) permit undisputed accounts payable to be more than 45 days old or change its practices and procedures with respect to the Subsidiary; andcollection of any accounts receivable other than in the Ordinary Course of Business; (exvii) Except for permit any current insurance or reinsurance policies to be canceled or terminated or any of the indebtedness set forth on Schedule 6.4(e)coverages thereunder to lapse, unless simultaneously with such cancellation, termination or lapse, replacement policies providing coverage equal to or greater than the Subsidiary shall not incur any indebtedness for borrowed moneycoverage cancelled, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis terminated or lapsed are in full force and effect until the Closing; (except for scheduled payments or required pre- payments of outstanding debt), or adopt xviii) settle or agree to settle any Proceeding; (xix) amend, modify or otherwise change the terms of any existing Material Contract, in each case to require the acceleration of the payments due to any Company Group Member thereunder; (xx) enter into any joint venture or partnership; (xxi) (A) make, revoke or change any Tax election, (B) adopt or change any new employee benefit plan Tax accounting method or period (except as required by Law), (C) settle any Tax audit or Tax liability, (D) file any amended Tax Return, (E) consent to any extension or waiver of the limitation period applicable law to any Tax claim or assessment relating to any Company Group Member, (F) enter into any closing, settlement or similar agreement with respect to Taxes, (G) enter into any Tax sharing agreement or similar contract, (H) file any Tax Return other than on a basis consistent with past practice, or (I) surrender any right to claim a refund of Taxes; (xxii) enter into any Contract outside the Ordinary Course of Business that would constitute a Material Contract for purposes of Section 5.19(a); (xxiii) reduce any Company Group Member's average sale prices for their products or services or make any material change to any Company Group Member's sales methods and practices (including any material change in the manner in which the any Company Group Member provides warranties, discounts or credits to customers) other than in the Ordinary Course of Business or except as required by Section 7.1(a); (xxiv) modify, amend or terminate any Material Contract (other than any unilateral modification, amendment or termination by the employment other party to such Material Contract pursuant to the terms of such Material Contract that is not caused by the pendency of the Closing) or contract waive, release or assign any rights or claims thereunder, in each case other than in the Ordinary Course of Business; (xxv) enter into any employee Contract that would be required to be disclosed pursuant to Section 5.4(b); (xxvi) enter into any new line of business; or (xxvii) agree, commit or contractor or accrue resolve to do any liability beyond of the Closing Date for severanceforegoing.

Conduct of Business Prior to the Closing Date. The LLC and the --------------------------------------------- Subsidiary agree that from From the date hereof and prior of this Agreement until the Closing, Seller shall cause the Company to conduct its business in the Closing Date, ordinary course and except (i) as expressly contemplated by this Agreement, (ii) as set forth in Schedule 6.4 hereto6.01, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this Agreementwith the prior written consent of Buyer, which consent shall not be unreasonably conditioned, delayed or withheld, from the date hereof until the Closing Date, Seller shall cause the Company not to: (a) the business of the LLC and the Subsidiary shall be conducted in the ordinary courseamend, modify or restate its Charter Documents; (b) no change shall be made in the Articles adopt a plan or agreement of Organization complete or Operating Agreement of the Subsidiarypartial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization; (c) neither the LLC nor the Subsidiary shall enter issue, sell, transfer, pledge, dispose of or encumber any of its shares, or securities convertible into nor terminateor exchangeable for, amendor options, release warrants, calls, commitments or modify rights of any Material Contract concerning the operations kind to acquire, any equity interests in it or assets shares of the Subsidiaryits capital stock of any class or series; (d) neither the LLC nor the Subsidiary will takesplit, agree to takecombine, subdivide or do anything in the conduct reclassify any of its business which would be contrary to outstanding shares of capital stock or in material breach of any of the terms or provisions of this Agreementother equity interests; (e) enter into, or which would cause any of the representations of the LLC or the Subsidiary contained herein to be or become untrue modify in any material respect respect, amend in any material respect, fail to renew or which would result perform or terminate, or fail to fully enforce, any Material Contract or waive, release or assign any material rights thereunder, except in each case in the ordinary course of business provided such action does not have a Material Adverse Effect to on the Subsidiary; andCompany; (ef) Except for (i) increase the indebtedness set forth on Schedule 6.4(e)compensation or benefits of any manager, the Subsidiary shall not incur director, officer, consultant or employee; (ii) enter into (or adopt) any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre- payments of outstanding debt)new, or adopt or agree to adopt materially amend any new employee benefit plan existing, Employee Benefit Plan except as required by applicable law Law; (iii) make any bonus, commission or terminate incentive or equity compensation payment, except as required under any existing Employee Benefit Plan or Employment Agreement, or as required by applicable Law; (iv) enter into any Employment Agreement; or (v) hire any new employee or promote any employee to a new position if such newly hired or promoted employee will receive annual base compensation in excess of $75,000 in such position; (g) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any equity interest in or a material portion of the employment assets of, or contract by any other manner acquire any business or any Person or division thereof; (h) sell, lease, encumber (including by the grant of any employee option thereon) or contractor otherwise dispose of any material assets or accrue property except (A) pursuant to existing Contracts, and (B) sales of Inventory in the ordinary course of business; (i) (i) incur or assume any liability beyond long-term or short-term debt or issue any debt securities, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the Closing Date obligations of any other Person; (iii) make or cancel, or waive any rights with respect to, any loans to, advances or capital contributions to, or investments in, any other Person; (iv) pledge or otherwise encumber shares of its capital stock or other equity interests; or (v) mortgage or pledge any of its tangible or intangible assets or properties; (j) engage in any transaction with, or enter into any Contract with, any of its directors, officers or Affiliates; (k) change any method of accounting or accounting practice used by it except any change required by reason of a change in GAAP or other applicable accounting standards; (l) enter into any Contract that limits its ability, or would limit the ability of Buyer after the Closing, to compete in or conduct any line of business or compete with any Person in any geographic area or during any period; (m) take any action that would reasonably be expected to have a Material Adverse Effect on the Company; (n) enter into any new line of business, except for severanceintroduction of new products in the ordinary course of business; (o) remove any equipment or other assets from the Real Property or replace such items unless such removal or replacement occurs in the ordinary course of business, and, in the case of any removal, unless the removed item is replaced with an equivalent item in the ordinary course of business; or (p) agree or commit to do any of the foregoing. Notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that the Company shall be permitted to distribute cash dividends to Seller prior to the Closing.

Conduct of Business Prior to the Closing Date. The LLC and During the --------------------------------------------- Subsidiary agree that period from the date hereof and prior to of this Agreement until the earlier of the Closing Date, and except (i) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to Date or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this Agreement: (a) the business of the LLC and the Subsidiary shall be conducted in the ordinary course; (b) no change shall be made in the Articles of Organization or Operating Agreement of the Subsidiary; (c) neither the LLC nor the Subsidiary shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets of the Subsidiary; (d) neither the LLC nor the Subsidiary will take, agree to take, or do anything in the conduct of its business which would be contrary to or in material breach of any of the terms or provisions termination of this Agreement, and except as otherwise contemplated by this Agreement, the Company shall: (i) operate and conduct its business in the usual, regular and ordinary course, consistent with past practice and prudent business practices; (ii) preserve intact the Company’s corporate existence, business organization, assets, licenses, permits, authorizations, and business opportunities; (iii) comply with all material contractual obligations applicable to the business operations of the Company; (iv) maintain all of its properties and assets in operating condition, reasonable wear and tear excepted, and maintain the insurance coverages described in Section 3.17 of the Company Disclosure Memorandum; (v) in good faith and in a reasonable manner (a) cooperate with Sterling in satisfying the conditions in this Agreement, (b) assist Sterling in obtaining as promptly as possible all consents, approvals, authorizations and rulings, whether regulatory, corporate or otherwise, as are necessary to carry out and consummate the transactions contemplated by this Agreement, (c) upon the written request of Sterling, furnish information concerning the Company not previously provided to Sterling required for inclusion in any filings or applications that may be necessary in that regard, and (d) cooperate in good faith to reasonably perform all acts and execute and deliver all documents necessary to cause the transactions contemplated by this Agreement to be consummated at the earliest date that is reasonably possible; (vi) timely file all Reports required to be so filed by the Company with any Regulatory Authority and to the extent permitted by applicable Law, promptly thereafter deliver to Sterling copies of all such Reports required to be so filed; (vii) comply in all material respects with all applicable Laws and regulations, domestic and foreign; (viii) promptly notify Sterling upon obtaining knowledge of any default, event of default or condition with which the passage of time or giving of notice would constitute a default or an event of default under the Company Loan Documents and promptly notify and provide copies to Sterling of any material written communications concerning the Company Loan Documents; (ix) promptly give written notice to Sterling of (a) any material change in its business, operations or prospects, (b) any complaints, investigations or hearings (or communications indicating that the same may be contemplated) of any Regulatory Authority, (c) the institution or the threat of any material litigation against the Company, or (d) any event or condition that would cause any of the representations or warranties of the LLC or the Subsidiary Company contained herein in this Agreement to be untrue or become untrue misleading in any material respect or which would result in otherwise cause a Company Material Adverse Effect to the SubsidiaryEffect; and (ex) Except for use its best efforts to maintain current customer relationship and preserve intact its business organization, employees, advantageous business relationships and retain the indebtedness set forth on Schedule 6.4(e), the Subsidiary shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre- payments services of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severanceits officers and employees.

Conduct of Business Prior to the Closing Date. The LLC (a) From and the --------------------------------------------- Subsidiary agree that from after the date hereof until the earlier of the Closing Date and prior the termination of this Agreement in accordance with the terms of Section 9 hereof, Sellers shall maintain the Purchased Assets and the Purchased Entity and operate and carry on the Business only in the Ordinary Course of Business, except as otherwise expressly required by this Agreement or with the express written consent of Buyer. Consistent with the foregoing and to the Closing Dateextent permitted or required by the Bankruptcy Case, Sellers shall use commercially reasonable efforts, subject to the constraints of operating in a bankruptcy case and within the DIP Budget, to (i) continue operating the Business as a going concern, (ii) maintain the Purchased Assets and the assets and properties of, or used by, the Sellers and the Purchased Entity relating to the Business in their current condition (ordinary wear and tear excepted), (iii) maintain the business organization of the Business intact, (iv) maintain the Documents of the Business, (v) comply with all Legal Requirements, and (vi) preserve the goodwill of the manufacturers, suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Business. In connection therewith, no Seller shall (1) offer employment for any period on or after the Closing Date to any employee or agent of the Business regarding whom Buyer makes offers of employment in accordance with the terms set forth herein or (2) otherwise attempt to persuade any such employee or agent to terminate his or her relationship with the Business. (b) From and after the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with the terms of Section 9 hereof, except (iu) where the effect would be immaterial, (w) in the Ordinary Course of Business, (x) as expressly provided in this Agreement, including in connection with the Auction, (y) as set forth in on Schedule 6.4 hereto6.6 or (z) with the express written approval of Buyer, no Seller shall: (i) make any capital expenditure inconsistent with the DIP Budget; (ii) otherwise consented enter into any Contract for or relating to the Business that cannot be assigned to Buyer or ------------ approved by an authorized officer a permitted assignee of the Operating Partnership (such consent or approval not to be unreasonably withheld) or Buyer under Section 10.4; (iii) as required by this Agreement: (a) enter into any Contract for the business purchase of the LLC and the Subsidiary shall be conducted in the ordinary coursereal property; (biv) no change shall be made in the Articles enter into any lease of Organization or Operating Agreement of the Subsidiaryreal property; (cv) neither purchase any assets; (vi) cancel, compromise or settle any debt or claim or waive or release any material right of the LLC nor Sellers or the Subsidiary shall Purchased Entity; (vii) enter into, or agree to enter into, any sale-leaseback transactions; (viii) accelerate or delay collection of any Accounts Receivable generated by the Business in advance of or beyond their regular due dates; (ix) collect or agree to collect any Account Receivable for less than the amount billed therefor; (x) delay or accelerate payment of any account payable or other Liability of the Business beyond or in advance of its due date; (xi) fail to maintain the Purchased Assets in their present condition; (xii) institute any new, or increase (including any increase in coverage) any existing, profit-sharing, bonus, incentive, deferred compensation, severance, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan with respect to directors, officers or employees of any Seller; (xiii) change the compensation (including salary, bonus or incentive compensation) of the directors, officers or employees of, or independent contractors or consultants to, any Seller or Purchased Entity; (xiv) enter into nor terminateor amend any collective bargaining, amendemployment, release deferred compensation, severance, consulting, independent contractor, nondisclosure, non-competition or similar agreement (or amend any such agreement) to which any Seller or Purchased Entity is a party or involving any of its respective directors, officers or employees in his or her capacity as a director, officer or employee of such Seller, except in the case of non-disclosure agreements entered into in the Ordinary Course of Business or in connection with the Auction; (xv) establish, adopt, enter into, amend or modify any Material Contract concerning the operations Benefit Plan (or assets any arrangement that would be a Benefit Plan if it were in existence as of the Subsidiarydate of this Agreement); (dxvi) neither make or rescind any material election in relation to Taxes; (xvii) declare, set aside, make or pay any dividend or other distribution in respect of the LLC nor the Subsidiary will takecapital stock, agree to takemembership interests or other equity interests of any Seller or Purchased Entity, or do anything repurchase, redeem or otherwise acquire any outstanding shares of the capital stock, membership interests or other securities of, or other ownership interests in, any Seller or Purchased Entity; (xviii) transfer, issue, sell or dispose of any shares of capital stock or other securities of any Seller or Purchased Entity; (xix) grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of any Seller or Purchased Entity; (xx) enter into or amend any agreement (or incur any commitment) that involves or is reasonably likely to involve total annual expenditures by Sellers or the Purchased Entity or total annual revenues to Sellers or the Purchased Entity in excess of $50,000; (xxi) other than in connection with the conduct DIP Loan, incur any Indebtedness, enter into any material guarantee, indemnity or other agreement to secure any obligation of its business which would be contrary to a third party or in material breach voluntarily create any Encumbrance (other than Permitted Encumbrances) for the benefit of a third party over any of the terms Purchased Assets; (xxii) enter into any Contract between a Seller or provisions Purchased Entity on the one hand, and any of this Agreementtheir respective Affiliates or any current or former officer, director, stockholder or any Subsidiary thereof, on the other hand; (xxiii) make any payment, or which would cause otherwise remit any monies, to any Affiliate of any Seller for any purpose whatsoever other than (A) in connection with the representations employment of any such Person, (B) to any director for services rendered in accordance with policies of Sellers in effect on the LLC date hereof or (C) in accordance with the Subsidiary contained herein to be terms of any Contract or become untrue Benefit Plan that is in any material respect or which would result in a Material Adverse Effect to effect on the Subsidiary; anddate hereof; (exxiv) Except for the indebtedness set forth on Schedule 6.4(e)change any accounting policy, the Subsidiary shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments principle or required pre- payments of outstanding debt), method or adopt or agree to adopt any new employee benefit plan practice except as required by applicable law GAAP; (xxv) amend the certificate of incorporation or by-laws or comparable organization documents of any Seller or Purchased Entity; (xxvi) (A) modify, reject or terminate any Contract or Lease in any material respect, or (B) enter into or modify any Contract containing material penalties which would be payable as a result of, and upon the employment consummation of, the transaction contemplated by this Agreement, except that Contracts or contract Leases may be rejected in the course of the Bankruptcy Case on five business days notice to Buyer. (xxvii) other than in connection with the DIP Loan, sell, lease (as lessor), transfer or otherwise dispose of (including any employee transfer from the Business to any Affiliates of Sellers), or contractor mortgage or accrue pledge, or voluntarily impose or suffer to be imposed, any liability beyond Encumbrance on (other than Assumed Liabilities and Permitted Encumbrances), any of the Closing Date for severancePurchased Assets; (xxviii) grant or acquire, agree to grant to or acquire from any Person, or dispose of or permit to lapse any rights to, any material Intellectual Property, or disclose or agree to disclose to any Person, other than representatives of Buyer, any material Trade Secret or any other material confidential to any Seller; or (xxix) enter into any agreement or commitment to take any action prohibited by this Section 6.5.

Conduct of Business Prior to the Closing Date. The LLC (a) From the date of this Agreement until the Closing, except as expressly contemplated by this Agreement and the --------------------------------------------- Subsidiary agree that from other Company Transaction Agreements, the date hereof Company shall, and prior shall cause its Subsidiaries to: (i) conduct its business in the Ordinary Course of Business and in compliance with all applicable Laws; (ii) use commercially reasonable efforts to preserve the goodwill of those having business relationships with it and to preserve, maintain, and protect its assets; (iii) use commercially reasonable efforts to preserve intact its business organizations; to keep available the services of its employees; to maintain existing relationships with licensors, licensees, suppliers, contractors, distributors, customers, clients and other Persons having material business relationships with the Company and its Subsidiaries; and to continue its current marketing and selling activities relating to the Closing Datebusiness, operations or affairs of the Company and its Subsidiaries; (iv) maintain its books and records in the Ordinary Course of Business; (v) promptly notify the Buyer in writing of the commencement or threat of any Proceedings involving the Company, any of its Subsidiaries or the transactions contemplated hereby; and (vi) pay, discharge and satisfy all accounts payable, Taxes or contractual obligations of the Company and its Subsidiaries, in each case in the Ordinary Course of Business, or in accordance with their terms (other than the Transaction Expenses, which shall be paid as provided in this Agreement). (b) Without limiting the generality of clause (a) of this Section 8.1, except (iX) as required or expressly contemplated in this Agreement and the other Company Transaction Agreements, (Y) with the prior written consent of the Buyer or (Z) as set forth in the corresponding subsections of Schedule 6.4 8.1 hereto, from the date hereof until the Closing Date, the Company will not, and will cause its Subsidiaries not to: (i) adopt or propose any change in its Certificate of Incorporation or bylaws or other organizational documents, as applicable, other than the Certificate Amendment or the Certificate of Merger; (ii) otherwise consented to adopt a plan or ------------ approved by an authorized officer agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization (other than the Operating Partnership (such consent or approval not to be unreasonably withheld) or Merger); (iii) issue, sell, transfer, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of capital stock of any class or series of the Company (excluding any shares of capital stock issuable upon the exercise of a warrant or a Company Stock Option set forth in Schedule 6.5(b)), or enter into any agreement or contract with respect to the foregoing, or make any other changes to its capital structure, other than the Certificate Amendment; (iv) (A) split, combine, subdivide or reclassify its outstanding shares of capital stock; or (B) declare, set aside or pay any dividend or other distribution payable in cash, stock or other property whether or not in respect of its capital stock; (v) redeem, purchase or otherwise acquire directly or indirectly any of the Company’s capital stock; (vi) make or commit to make any capital expenditure in excess of $5,000 individually or $15,000 in the aggregate; (vii) (A) grant to any director, officer, employee or consultant any increase in compensation or benefits other than as required by this Agreement: the terms of any Contract in existence on the Agreement Date and disclosed on the Disclosure Schedule; (aB) the business of the LLC and the Subsidiary shall be conducted enter into, adopt or amend any employment agreement, severance agreement or policy or retention agreement; (C) pay or agree to pay any severance, bonus, fringe benefits or other payments (other than salary or fees paid in the ordinary courseOrdinary Course of Business or as required by the terms of any Contract in existence on the Agreement Date and disclosed on the Disclosure Schedule) to any directors, officers, employees, consultants or other Persons; (D) enter into (or adopt) any new, or amend any existing Compensation and Benefit Plan or Foreign Plan; or (E) hire any employee; (bviii) no change shall be made acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any equity interest in or the Articles assets of Organization any other business or Operating Agreement of the SubsidiaryPerson or division thereof or create any subsidiary; (cix) neither sell, lease, encumber (including by the LLC nor grant of any option thereon) or otherwise dispose of any tangible or intangible assets or property except pursuant to existing contracts or commitments or with respect to the Subsidiary shall enter into nor terminatesale of products or services of the Company and its Subsidiaries in the Ordinary Course of Business; (x) (A) incur or assume any Indebtedness other than advances drawn on the Buyer Loan, amend(B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than endorsements of checks in the Ordinary Course of Business); (C) guarantee or endorse the obligations of any other Person; (D) make or cancel, release or modify waive any Material Contract concerning rights with respect to, any loans, advances or capital contributions to, or investments in, any other Person other than advancement of travel and similar expenses in the operations Ordinary Course of Business; (E) pledge or assets otherwise encumber shares of capital stock of the SubsidiaryCompany or any of its Subsidiaries, except for Permitted Encumbrances; or (F) mortgage or pledge any of its tangible or intangible assets or properties; or (G) cancel, release or assign any liabilities, obligations or Indebtedness payable to the Company or any of its Subsidiaries; (dxi) neither mortgage or pledge or grant a security interest in any of its assets or create any Encumbrance thereon, other than Permitted Encumbrances; (xii) pay, discharge or satisfy any liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than such payment, discharge or satisfaction in the LLC nor Ordinary Course of Business; (xiii) enter into (A) any license or other Contract with respect to the Subsidiary will take, agree to takeIntellectual Property owned by the Company or any of its Subsidiaries, or do anything (B) any consulting or independent contracting arrangement; (xiv) except for the continuation of at-will employment arrangements in the conduct Ordinary Course of Business, directly or indirectly, engage in any transaction with, or enter into any Contract with, any director, officer, stockholder or Affiliate of the Company or its business which would Subsidiaries or any individual known to the Company to be contrary to or in material breach an immediate family member of any such Person; (xv) change any method of the terms accounting or provisions accounting practice or policy used by it except any change required by reason of this Agreement, a change in GAAP or which would cause any of the representations of the LLC or the Subsidiary contained herein to be or become untrue Law; (xvi) change in any material respect any cash management practices or which otherwise delay in any material respect payment of any accounts payable or other liability of the Company or any of its Subsidiaries or Contract beyond its due date or the date when such liability would result have been paid in a Material Adverse Effect the Ordinary Course of Business; (xvii) permit undisputed accounts payable to be more than 45 days old or change its practices and procedures with respect to the Subsidiary; andcollection of any accounts receivable other than in the Ordinary Course of Business; (exviii) Except for waive, release, grant or transfer any rights of value of the indebtedness set forth on Schedule 6.4(e)Company or its Subsidiaries, other than in the Subsidiary shall not incur Ordinary Course of Business; (xix) permit any indebtedness for borrowed moneycurrent insurance or reinsurance policies to be canceled or terminated or any of the coverages thereunder to lapse, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis unless simultaneously with such cancellation, termination or lapse, replacement policies providing coverage equal to or greater than the coverage cancelled, terminated or lapsed are in full force and effect until the Closing; (except for scheduled payments or required pre- payments of outstanding debt)xx) institute, or adopt settle or agree to settle any Proceeding, including in respect of any former or current employee, customer, supplier, licensor, licensee or contractor of the Company or any of its Subsidiaries, other than settlements that involve solely the payment of monetary relief prior to the Closing that will be taken into account in the Working Capital Adjustment and no ongoing monetary or other obligations of the Company or any of its Subsidiaries after the Closing; (xxi) amend, modify or otherwise change the terms of any existing Contract, in each case to require the acceleration of the payments due to the Company or any of its Subsidiaries thereunder; (xxii) enter into any joint venture or partnership; (xxiii) (A) make, revoke or change any Tax election, (B) adopt or change any new employee benefit plan Tax accounting method or period (except as required by Law), (C) settle any Tax audit or Tax liability, (D) file any amended Tax Return, (E) consent to any extension or waiver of the limitation period applicable law to any Tax claim or assessment relating to the Company or any of its Subsidiaries, (F) enter into any closing, settlement or similar agreement with respect to Taxes, (G) enter into any Tax sharing agreement or similar contract, (H) file any Tax Return other than on a basis consistent with past practice, or (I) surrender any right to claim a refund of Taxes; (xxiv) enter into any Contract that would constitute a Material Contract for purposes of Section 6.20(a); (xxv) enter into any Contract relating to the research, development, distribution, sale, supply, license, marketing, co-promotion or manufacturing of products or services of the Company or products licensed by the Company or any of its Subsidiaries, or the Intellectual Property of the Company or any of its Subsidiaries; (xxvi) reduce the Company’s or its Subsidiaries’ average sale prices for their products or services or make any material change to the Company’s or its Subsidiaries’ sales methods and practices (including any material change in the manner in which the Company or any Subsidiary provides warranties, discounts or credits to customers); (xxvii) modify, amend or terminate any Material Contract (other than any unilateral modification, amendment or termination by the employment other party to such Material Contract pursuant to the terms of such Material Contract that is not caused by the pendency of the Merger) or contract waive, release or assign any rights or claims thereunder, in each case other than in the Ordinary Course of Business; (xxviii) enter into any employee Contract that would be required to be disclosed pursuant to Section 6.4(b); (xxix) enter into any new line of business; (xxx) take any action that would reasonably be expected to prevent, delay or contractor impede the consummation of the transaction contemplated hereby; or (xxxi) agree, commit or accrue resolve to do any liability beyond of the Closing Date for severanceforegoing.

Conduct of Business Prior to the Closing Date. The LLC (a) Each of the Sellers and the --------------------------------------------- Subsidiary agree Company covenants and agrees that from the Execution Date through the earlier of the Closing Date or the termination of this Agreement, the Company shall not conduct its business other than in the ordinary course in order to protect the value of the Company. Without Limiting the generality of the foregoing, the Sellers shall cause the Company, and the Company agrees, to (i) continue its business activities and operations, and business plan implementation; (ii) not materially shorten or lengthen the customary payment cycles for any of its payables or receivables, however, the Company may reduce the principal amount of its indebtedness, provided that the Company incurs no pre-payment penalties; (iii) use reasonable efforts to attempt to (A) keep available to the Purchaser the services of the employees of the Company, (B) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Company and the Business except as required by applicable law, and (C) preserve its current relationships with its employees, customers, suppliers, subcontractors, regulators, and other persons with which it has significant business relationships; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.19(b) or Leases for Tangible Personal Property set forth in Section 3.20 of the Disclosure Schedule which by their terms would otherwise expire; (v) maintain all material licenses, qualifications, registrations and authorizations to do business in each jurisdiction in which it is so licensed, qualified, registered or authorized; (vi) not engage in any practice, take any action, fail to take any action or enter into any transaction, in each case outside the normal course of business which could reasonably be expected to cause any representation or warranty of the Sellers or the Company to be untrue for purposes of this Section 5.01(a) as of the date hereof made in any material respect or result in a breach of any covenant made by the Sellers or the Company in this Agreement; and (vii) not pay any dividends, bonuses or other extraordinary payments, except for $250,000.00 in bonuses to key Company employees. (b) Each of the Sellers and the Company covenants and agrees that, prior to the Closing Date, and except (i) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer without the prior written consent of the Operating Partnership (such Purchaser, which consent or approval not to be unreasonably withheld) or (iii) as required by this Agreement: (a) the business of the LLC and the Subsidiary shall be conducted in the ordinary course; (b) no change shall be made in the Articles of Organization or Operating Agreement of the Subsidiary; (c) neither the LLC nor the Subsidiary shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets of the Subsidiary; (d) neither the LLC nor the Subsidiary will take, agree to take, or do anything in the conduct of its business which would be contrary to or in material breach of any of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiary contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to the Subsidiary; and (e) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiary shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre- payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severance.not