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

Conduct of Business Prior to the Closing Date. (a) Except as expressly permitted by this Agreement or with the prior written consent of Buyer, which consent will not be unreasonably withheld during the period from the date of this Agreement to the Closing Date, each Seller shall cause the Hawaiian Businesses to (i) conduct the Business in the ordinary course of business and in compliance in all material respects with all applicable Laws; provided, however, to the extent cash held by the Company is an Excluded Asset hereunder, HFS may distribute the cash to Sellers or Axxxxx, Hxxx Xxxxx and Inc., (ii) use commercially reasonable efforts to maintain and preserve intact its business organization, its management, the Acquired Assets 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 as reasonably necessary and take no action that is intended to or would reasonably be expected to adversely affect or materially delay the ability of Sellers 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 5.4(b) of the Disclosure Schedule or as otherwise permitted by this Agreement, no Hawaiian Business shall and the Sellers shall not permit any Hawaiian Business to, without the prior written consent of Buyer, which consent shall not be unreasonable withheld: (i) incur any indebtedness for borrowed money, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person except for obligations which will be satisfied in full by Sellers prior to or at the Closing; (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 Hawaii Employees, (b) pay any pension, severance or retirement benefits to Hawaii Employees, (c) become a party to, establish, amend, commence, participate in, terminate or commit itself to the adoption of any Hawaii Benefit Plan, (d) accelerate the vesting of any long-term incentive compensation under any Hawaii Benefit Plans, or (e) negotiate, amend or enter into any collective bargaining agreement with any labor organization, union or association except that Buyer understands and acknowledges that a new Collective Bargaining Agreement for Valley of the Temples has been negotiated and is currently out for execution and the Buyer hereby consents to the execution of such Collective Bargaining Agreement; (iii) sell, transfer, pledge, lease, grant, license, mortgage, encumber or otherwise dispose of any of its properties or assets other than the termination of the Wxxxxxxx location to any Person other than another Hawaiian Business, or create any Lien of any kind with respect to any such property or asset other than a Permitted Lien, or cancel, release or assign any indebtedness to 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 line of business or change in any material respect its operating policies, except as required by applicable Law; (v) transfer ownership, or grant any license or other rights, to any person or entity of or in respect of any Hawaii Intellectual Property; (vi) acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any 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 organizational documents of any Hawaiian Business, 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 any Hawaiian Business containing (1) any material restriction on the ability of it to conduct the Hawaiian Businesses as it is presently being conducted or (2) any material restriction on the ability of any Hawaiian Business or their affiliates 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) With the exception of any SCI/Alderwoods/Lxxxxx litigation in existence at the date of signing, any lawsuits which the Seller is named but no Hawaiian Business is named as a party and the ADP litigation which Sellers are solely responsible for and for which Sellers have the right to settle or litigate, the Hawaiian Businesses and the Company will not commence or settle any claim, action or proceeding in excess of $50,000 individually or $100,000 in the aggregate; provided all settlements must be completed prior to Closing without the consent of Buyer which consent will not be unreasonably withheld, except that Sellers may settle such cases after the Closing without the consent of the Buyer provided that such settlement is only a monetary settlement; (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 $25,000 in the aggregate or enter into any contract or commitment therefore, except for those capital expenditures set forth in the Capital Expenditure Budget affixed to the Disclosure Schedules, and those expenditures relating to the expansion of Maui Memorial Park, purchase of a retort at Nakamura Mortuary, those capital expenditures necessary to repair the roof the Maui Mausoleum, and renovation of the preparation room at HMPM and all other projects which have commenced prior to the execution of this Agreement and are included in Schedule 5.4; (xii) enter into any contract for the purchase, sale or lease of real property other than the sale of cemetery inventory in the ordinary course of business and upon approval of the Buyer, which approval shall not be unreasonably withheld, the acquisition of the Maui land from Maui-Lxxx; (xiii) fail to keep in force insurance policies providing insurance coverage with respect to the assets, operations and activities of any Hawaiian Business 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). (c) Notwithstanding the foregoing, within five (5) days following execution of this Agreement, Management Company shall provide notice to any of its employees who work exclusively for the Hawaiian Businesses as required under the WARN Act or the Plant closing Act in Hawaii, chapter 394B of the Hawaiian statutes. All liabilities associated with such notice and termination of such employees shall be the sole responsibility of the Sellers as a Retained Liability.

Conduct of Business Prior to the Closing Date. (a) Except as expressly permitted or contemplated by this Agreement or with the prior written consent of Buyer, which consent will not be unreasonably withheld during the period from the date of this Agreement to the Closing Date, each Seller shall cause the Hawaiian Businesses Company to (i) conduct the Business Company’s business in the ordinary course of business and in compliance in all material respects with all applicable Laws; provided, however, to the extent cash held by the Company is an Excluded Asset hereunder, HFS may distribute the cash to Sellers or Axxxxx, Hxxx Xxxxx and Inc., (ii) use commercially reasonable efforts to maintain and preserve intact its business organization, its management, the Acquired Assets and advantageous business relationships with its customers, suppliers and others having business dealings with it and retain the services of its officers and key employeesProperty, (iii) cooperate with Buyer as reasonably necessary and take no action that is intended to or would reasonably be expected to adversely affect or materially delay the ability of Sellers 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 5.4(b) of the Disclosure Schedule or as otherwise permitted by this Agreement, no Hawaiian Business shall and the Sellers Seller shall not permit any Hawaiian Business the Company to, without the prior written consent of Buyer, which consent shall may not be unreasonable withheldwithheld in Buyer’s sole and absolute discretion: (i) incur any indebtedness for borrowed money, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person except for obligations which will be satisfied in full by Sellers Seller or the Company prior to or at the Closing; (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 Hawaii Employees, (b) pay any pension, severance or retirement benefits to Hawaii Employees, (c) become a party to, establish, amend, commence, participate in, terminate or commit itself to the adoption of any Hawaii Benefit Plan, (d) accelerate the vesting of any long-term incentive compensation under any Hawaii Benefit Plans, or (e) negotiate, amend or enter into any collective bargaining agreement with any labor organization, union or association except that Buyer understands and acknowledges that a new Collective Bargaining Agreement for Valley of the Temples has been negotiated and is currently out for execution and the Buyer hereby consents to the execution of such Collective Bargaining Agreement; (iiiii) sell, transfer, pledge, lease, grant, license, mortgage, encumber or otherwise dispose of any of its properties or assets other than the termination of the Wxxxxxxx location Property to any Person other than another Hawaiian BusinessPerson, or create any Lien of any kind with respect to any such property or asset the Property other than a Permitted Lien, or cancel, release or assign any indebtedness to 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; (iviii) enter into any new line of business or change in any material respect its operating policies, except as required by applicable Law; (v) transfer ownership, or grant any license or other rights, to any person or entity of or in respect of any Hawaii Intellectual Property; (viiv) acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any 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; (viiv) amend the organizational documents of any Hawaiian Business, the Company or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties; (viiivi) (a) amend or otherwise modify, or violate the terms of, or terminate, any Material ContractAgreement, (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 days’ notice or, except as may be required by applicable Law, other binding obligation of any Hawaiian Business the Company’s business containing (1) any material restriction on the ability of it to conduct the Hawaiian Businesses business as it is presently being conducted or (2) any material restriction on the ability of any Hawaiian Business or their affiliates 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) With the exception of any SCI/Alderwoods/Lxxxxx litigation in existence at the date of signing, any lawsuits which the Seller is named but no Hawaiian Business is named as a party and the ADP litigation which Sellers are solely responsible for and for which Sellers have the right to settle or litigate, the Hawaiian Businesses and the Company will not commence or settle any claim, action or proceeding in excess of $50,000 individually or $100,000 in the aggregate; provided all settlements must be completed prior to Closing without the consent of Buyer which consent will not be unreasonably withheld, except that Sellers may settle such cases after the Closing without the consent of the Buyer provided that such settlement is only a monetary settlement; (xvii) 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; (xiviii) make any capital expenditure in excess of $25,000 in the aggregate 3,000 or enter into any contract or commitment therefore, except for those capital expenditures set forth in the Capital Expenditure Budget affixed to the Disclosure Schedules, and those expenditures relating to the expansion of Maui Memorial Park, purchase of a retort at Nakamura Mortuary, those capital expenditures necessary to repair the roof the Maui Mausoleum, and renovation of the preparation room at HMPM and all other projects which have commenced prior to the execution of this Agreement and are included in Schedule 5.4,; (xiiix) enter into any contract for the purchase, sale or lease of real property other than the sale of cemetery inventory in the ordinary course of business and upon approval of the Buyer, which approval shall not be unreasonably withheld, the acquisition of the Maui land from Maui-Lxxxproperty; (xiiix) fail to keep in force insurance policies providing insurance coverage with respect to the assets, operations and activities of any Hawaiian the Company’s Business as currently in effect; or (xivxi) 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, by this Section 5.4(b). (c) Notwithstanding the foregoing, within five (5) days following execution of this Agreement, Management Company shall provide notice to any of its employees who work exclusively for the Hawaiian Businesses as required under the WARN Act or the Plant closing Act in Hawaii, chapter 394B of the Hawaiian statutes. All liabilities associated with such notice and termination of such employees shall be the sole responsibility of the Sellers as a Retained Liability.

Conduct of Business Prior to the Closing Date. (a) Except as expressly permitted by this Agreement or with the prior written consent of Buyer, which consent will not be unreasonably withheld during the period from the date of this Agreement to the Closing Date, each Seller shall cause the Hawaiian Businesses Company to (i) conduct the Business in the ordinary course of business and in compliance in all material respects with all applicable Laws; provided, however, to the extent cash held by the Company is an Excluded Asset hereunder, HFS may distribute the cash to Sellers or Axxxxx, Hxxx Xxxxx and Inc., (ii) use commercially reasonable efforts to maintain and preserve intact its business organization, its management, the Acquired Assets 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 as reasonably necessary and take no action that is intended to or would reasonably be expected to adversely affect or materially delay the ability of Sellers 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 5.4(b) of the Disclosure Schedule or as otherwise permitted by this Agreement, no Hawaiian Business the Company shall not and the Sellers Seller shall not permit any Hawaiian the Business to, without the prior written consent of Buyer, which consent shall not be unreasonable withheld:. (i) incur any indebtedness for borrowed money, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person except for obligations which will be satisfied in full by Sellers prior to or at the ClosingPerson; (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 Hawaii Employees, (b) pay any pension, severance or retirement benefits to Hawaii Employees, or, (c) become a party to, establish, amend, commence, participate in, terminate or commit itself to the adoption of any Hawaii Benefit Plan, (d) accelerate the vesting of any long-term incentive compensation under any Hawaii Benefit Plans, or (e) negotiate, amend or enter into any collective bargaining agreement with any labor organization, union or association except that Buyer understands and acknowledges that a new Collective Bargaining Agreement for Valley of the Temples has been negotiated and is currently out for execution and the Buyer hereby consents to the execution of such Collective Bargaining Agreement; (iii) sell, transfer, pledge, lease, grant, license, mortgage, pay, encumber or otherwise dispose of any of its properties or assets other than the termination of the Wxxxxxxx location to any Person other than another Hawaiian BusinessPerson, or create any Lien of any kind with respect to any such property or asset asset, including the Real Property, other than a Permitted Lien, or cancel, release or assign any indebtedness to 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 line of business or change in any material respect its operating policies, except as required by applicable Law; (v) transfer ownership, or grant any license or other rights, to any person or entity of or in respect of any Hawaii Intellectual Property; (vi) acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any 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 organizational documents of any Hawaiian the Business, 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 any Hawaiian the Business containing (1) any material restriction on the ability of it to conduct the Hawaiian Businesses Business as it is presently being conducted or (2) any material restriction on the ability of any Hawaiian the Business or their affiliates 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) With the exception of any SCI/Alderwoods/Lxxxxx litigation in existence at the date of signing, any lawsuits which the Seller is named but no Hawaiian Business is named as a party and the ADP litigation which Sellers are solely responsible for and for which Sellers have the right to settle or litigate, the Hawaiian Businesses and the Company will not commence or settle any claim, action or proceeding in excess of $50,000 5,000 individually or $100,000 10,000 in the aggregate; provided all settlements must be completed prior to Closing without the consent of Buyer which consent will not be unreasonably withheld, except that Sellers may settle such cases after the Closing without the consent of the Buyer provided that such settlement is only a monetary settlementClosing; (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 $25,000 2,500 in the aggregate or enter into any contract or commitment therefore, except for those capital expenditures set forth in the Capital Expenditure Budget affixed to the Disclosure Schedules, and those expenditures relating to the expansion of Maui Memorial Park, purchase of a retort at Nakamura Mortuary, those capital expenditures necessary to repair the roof the Maui Mausoleum, and renovation of the preparation room at HMPM and all other projects which have commenced prior to the execution of this Agreement and are included in Schedule 5.4therefor; (xii) enter into any contract for the purchase, sale or lease of real property other than the sale of cemetery inventory in the ordinary course of business and upon approval of the Buyer, which approval shall not be unreasonably withheld, the acquisition of the Maui land from Maui-Lxxxbusiness; (xiii) fail to keep in force insurance policies providing insurance coverage with respect to the assets, operations and activities of any Hawaiian the Business 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). (c) Notwithstanding the foregoing, within five (5) days following execution of this Agreement, Management Company shall provide notice to any of its employees who work exclusively for the Hawaiian Businesses as required under the WARN Act or the Plant closing Act in Hawaii, chapter 394B of the Hawaiian statutes. All liabilities associated with such notice and termination of such employees shall be the sole responsibility of the Sellers as a Retained Liability.