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

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the time of the Closing, neither the Seller nor any Subsidiary shall conduct its business other than in the ordinary course and consistent with the Seller's and such Subsidiary's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the Closing Date, the Seller shall cause each Subsidiary to (i) continue their advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of their payables or receivables; (iii) use their best efforts to (A) preserve intact their business organizations and the business organization of the Business, (B) keep available to the Purchaser the services of the employees of the Seller and each Subsidiary, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Seller, each Subsidiary and the Business and (D) preserve their current relationships with their customers, suppliers and other persons with which they have had significant business relationships; and (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 3.20(b) of the Disclosure Schedule which by their terms would otherwise expire.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) 5.01 of the Disclosure Schedule and pursuant to Section 6.01(g)Schedule, between from the date hereof and until the earlier of the time of the ClosingClosing and the termination of this Agreement pursuant to Article X, neither it will conduct the Seller nor any Subsidiary shall conduct its business other than Business in the ordinary course and consistent with the Seller's and such Subsidiary's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) 5.01 of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the Closing DateSchedule, the Seller shall cause each Subsidiary to (i) continue their its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of their its payables or receivables; (iii) use their its reasonable best efforts to (A) preserve intact their business organizations and the business organization of the Business, their Business (B) keep available to the Purchaser the services of the employees of the Seller and each Subsidiary, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the SellerBusiness, each Subsidiary and the Business and (DC) preserve their its current relationships with their its employees, customers, suppliers and other persons with which they have it has had significant business relationships; and (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, exercise any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.20(b3.13(b) of the Disclosure Schedule which by their terms would otherwise expire; (v) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue in any material respect or result in a material breach of any covenant made by the Seller in this Agreement and (vi) without the prior written consent of the Purchaser (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, take any action of the type specified in the second sentence of Section 3.07.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g)Schedule, between the date hereof and the time of the Closing, neither the Seller nor any Subsidiary shall not conduct its business the Business other than in the ordinary course and consistent with the Seller's and such Subsidiary's ’s prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the Closing DateSchedule, the Seller shall cause each Subsidiary (as it relates to the Business) (i) continue their its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practicepractice and good business judgment; (ii) not shorten or lengthen the customary payment cycles for any of their its payables or receivables; (iii) use their best its reasonable commercial efforts to (A) preserve intact their business organizations and the business organization of the Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller and each Subsidiaryto whom offers of employment are to be made pursuant to Section 6.01, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Seller, each Subsidiary and the Business and (D) preserve their its current relationships with their customers, the customers and suppliers of the Business and other persons with which they have the Business has had significant business relationships; and (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser's ’s prior written approvalapproval (not to be unreasonably withheld), any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.20(b3.16(c) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable to satisfy the condition set forth in Section 7.02(a).

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees the Company covenant and agree that, except as described in Section 5.01(a) for the transfer of the Disclosure Schedule Assets and the Assumed Liabilities to the Company pursuant to Section 6.01(g)the Assignment and Assumption Agreement, between the date hereof and the time of the Closing, neither the Seller nor any Subsidiary Component Business shall conduct its business not be conducted other than in the ordinary course and consistent with the Seller's and such Subsidiary's prior past practice. Without limiting the generality of the foregoing, except the Seller and the Company, as described the case may be, shall, in Section 5.01(a) respect of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof Component Business and the Closing DateAssets, the Seller shall cause each Subsidiary to (i) continue their its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of their its payables or receivables; (iii) use their its reasonable best efforts to (A) preserve intact their business organizations and the business organization of the Component Business, (B) keep available to the Purchaser the services of the employees of the Seller and each Subsidiarywho devote employment time working for the Component Business, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Sellermaintained, each Subsidiary and the Business and (D) preserve their its current relationships with their its customers, suppliers and other persons with which they have had it has significant business relationships; and (iv) exercisenot engage in any practice, but only after notice take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller or the Company in this Agreement and (v) not without the prior written consent of the Purchaser and receipt of make, revoke or change (or cause or permit to be made, revoked or changed) any Tax election that would affect 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 3.20(b) of the Disclosure Schedule which by their terms would otherwise expireCompany.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees thatthat from the date of this Agreement to the Closing Date, except as described set forth in Section 5.01(a) 5.01 of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the time of the ClosingSchedule, neither the Seller Company nor any Subsidiary shall conduct its business other than in the ordinary course and consistent with the SellerCompany's and such Subsidiary's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) 5.01 of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the Closing DateSchedule, the Seller shall cause the Company and each Subsidiary to (i) continue their advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of their payables or receivables; (iii) use their best efforts to (A) preserve intact their business organizations and the business organization of the Business, (B) keep available to the Purchaser the services of the employees of the Seller Company and each Subsidiary, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the SellerCompany, each Subsidiary and the Business and (D) preserve their current relationships with their customers, suppliers and other persons Persons with which they have had significant business relationships; and (iv) exercisenot engage in any practice, but only after notice take any action, fail to take any action or enter into any transaction which could reasonably be expected to cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement; (v) not amend or waive any provision of the Chicago Stock Purchase Agreement or any other material contract of the Business; and (vi) not commit to any capital expenditures contracts, except 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 extent set forth in Section 3.20(b) the 2004 Budget of the Disclosure Schedule Business, without the prior consent of the Purchaser (which by their terms would otherwise expireconsent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding the foregoing, the Company and the Subsidiaries are hereby expressly permitted to enter into and consummate the transactions related to the Chicago Debt subject to Section 8.02(h).

Conduct of Business Prior to the Closing. (aA) The Seller Each of the Sellers covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g)Schedule, between the date hereof and the time of the Closing, neither the Seller nor any Subsidiary Company shall not conduct its business other than in the ordinary course and consistent with the Seller's and such SubsidiaryCompany's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the Closing DateSchedule, the Seller Sellers shall cause each Subsidiary the Company to (i) continue their its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of their its payables or receivables; (iii) use their its reasonable best efforts to (A) preserve intact their its business organizations organization and the business organization of the Business, (B) keep available to the Purchaser the services of the employees of the Seller and each SubsidiaryCompany, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Seller, each Subsidiary Company and the Business Business, and (D) preserve their its current relationships with their customers, suppliers and other persons Persons with which they have it has had significant business relationships; and (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 3.20(b3.16(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Sellers to be untrue or result in a breach of any covenant made by the Sellers in this Agreement.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g)Schedule, between the date hereof and the time of the Closing, neither the Seller nor any Subsidiary shall not conduct its business the Business other than in the ordinary course and consistent with the Seller's and such Subsidiary's ’s prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the Closing DateSchedule, the Seller shall cause each Subsidiary (as it relates to the Purchased Business) (i) continue their its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of their its payables or receivables; (iii) use their its reasonable best efforts to (A) preserve intact their business organizations and the business organization of the Purchased Business, (B) keep available to the Purchaser the services of the employees of the Seller and each SubsidiaryPurchased Business, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Seller, each Subsidiary and the Purchased Business and (D) preserve their its current relationships with their customers, the customers and suppliers and other persons with which they have had significant business relationshipsof the Purchased Business; and (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser's ’s prior written approval, any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.20(b3.14(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g), between that from the date hereof and through the time earlier of the ClosingClosing Date or the termination of this Agreement, neither the Seller Company nor any the Subsidiary shall conduct its business other than in the ordinary course and consistent with the Seller's and such Subsidiary's prior practiceConsistent With Past Practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the Closing Date, the Seller shall cause each the Company and the Subsidiary to (i) continue their advertising and promotional activities, and pricing and purchasing policies, in accordance with past practiceoperations, and business plan implementation, Consistent With Past Practice; (ii) not materially shorten or lengthen the customary payment cycles for any of their payables or receivables; (iii) use their best reasonable efforts to attempt to (A) preserve intact their business organizations and the business organization of the Business, (B) keep available to the Purchaser the services of the employees of the Seller and each SubsidiaryCompany, (CB) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Seller, each Subsidiary Company and the Business except as required by applicable law and (DC) preserve their current relationships with their customersemployees, suppliers distributors, policyholders, contractholders, regulators, rating agencies and other persons with which they have had significant business relationships; and (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 3.20(b3.19(b) or Leases for Tangible Personal Property set forth in Section 3.20(a) of the Disclosure Schedule which by their terms would otherwise expire.Disclosure

Conduct of Business Prior to the Closing. (a) The Seller and the Parent each covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant except that prior to Section 6.01(g)Closing the Company will release the Seller from any obligation to repay Indebtedness in an amount not to exceed $18,500,000 owed by the Seller or its Affiliates to the Company reflected on the Reference Balance Sheet or incurred since the date thereof in the ordinary course of business consistent with past practice, between the date hereof thereof and the time of the Closing, neither none of the Seller Seller, the Parent, the Company nor any Subsidiary shall conduct its business other than in the ordinary course and consistent with the SellerCompany's and such Subsidiary's prior practice, except for the transfer of the Real Property contemplated in Section 8.02(n) and the transfer of the accounting computer system and software referred to in Section 5.11. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the Closing DateSchedule, the Seller and the Parent each shall not cause the Company and each Subsidiary to (i) fail to continue their its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of their its payables or receivables; (iii) use their best efforts fail to (A) preserve intact their business organizations and the business organization of the Business, (B) keep available to the Purchaser the services of the employees of the Seller and each SubsidiaryTransferred Employees, (C) fail to continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the SellerCompany, each Subsidiary and the Business and (D) fail to preserve their its current relationships with their its customers, suppliers and other persons with which they have had it has significant business relationships; and (iv) exercisetransfer any cash out of the Company or the Subsidiaries, but only after notice except for reimbursements to the Seller of usual and customary third party costs (including income taxes in the ordinary course of business) expended by the Seller on behalf of the business consistent with past practice, each of which costs shall be identified and explained to the Purchaser in writing; and receipt (v) engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Purchaser's prior written approval, any rights of renewal pursuant Seller or the Parent to the terms be untrue or result in a breach of any of covenant made by the leases Seller or subleases set forth the Parent in Section 3.20(b) of the Disclosure Schedule which by their terms would otherwise expirethis Agreement.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g)Schedule, between the date hereof and the time of the Closing, neither the Seller nor any Subsidiary shall not conduct its business the Business other than in the ordinary course and consistent with the Seller's and such Subsidiary's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the Closing DateSchedule, the Seller shall cause each Subsidiary (as it relates to the Purchased Business) (i) continue their its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of their its payables or receivables; (iii) use their its reasonable best efforts to (A) preserve intact their business organizations and the business organization of the Purchased Business, (B) keep available to the Purchaser the services of the employees of the Seller and each SubsidiaryPurchased Business, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Seller, each Subsidiary and the Purchased Business and (D) preserve their its current relationships with their customers, the customers and suppliers and other persons with which they have had significant business relationshipsof the Purchased Business; and (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 3.20(b3.14(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g)Schedule, between the date hereof and the time of the Closing, neither the Seller nor any Subsidiary shall not conduct its business the Business other than in the ordinary course and consistent with the Seller's and such Subsidiary's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the Closing DateSchedule, the Seller shall cause each Subsidiary (as it relates to the Business) (i) continue their advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of their its payables or receivables; (iii) use their best reasonable efforts to (A) preserve intact their business organizations and the business organization of the Business, (B) keep available to the Purchaser the services of the employees of the Seller and each Subsidiaryto whom offers of employment are to be made pursuant to Section 6.01, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Seller, each Subsidiary and the Business and (D) preserve their its current relationships with their the customers, suppliers of the Business and other persons with which they have had significant business relationships; and (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 3.20(b3.16(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) not engage in any practice, take any action, fail to take any action or enter into any transaction not in the ordinary course which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement.

Conduct of Business Prior to the Closing. (a) The Seller Company covenants and agrees that, except as described in Section 5.01(a6.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g)Schedule, between the date hereof and the time of the Closing, neither the Seller nor any Subsidiary Company shall not conduct its business other than in the ordinary course and consistent with the Seller's and such SubsidiaryCompany's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a6.01(a) of the Disclosure Schedule and pursuant to Section 6.01(g), between the date hereof and the Closing DateSchedule, the Seller Company shall cause each Subsidiary to (i) continue their its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of their payables its Payables or receivablesReceivables; (iii) use their its best efforts to (A) preserve intact their its business organizations organization and the business organization of the Business, (B) keep available to the Purchaser the services of the employees of the Seller and each SubsidiaryCompany, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Seller, each Subsidiary Company and the Business and (D) preserve their its current relationships with their its customers, suppliers and other persons with which they have had it has significant business relationships; and (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 any leases or subleases set forth in Section 3.20(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Company to be untrue or result in a breach of any covenant made by the Company in this Agreement.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a5.1(a) of the Disclosure Schedule and pursuant to Section 6.01(g)Schedule, between the date hereof and the time of the Closing, neither Seller shall not conduct the Seller nor any Subsidiary shall conduct its business Business other than in the ordinary course and consistent with the Seller's and such Subsidiary's prior ’s past practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a5.1(a) of the Disclosure Schedule and pursuant Schedule, Seller shall, in each case with respect to Section 6.01(g)the Business or the Assets, between the date hereof and the Closing Date, the Seller shall cause each Subsidiary to (i) continue their its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of their its payables or receivables; (iii) use their its best efforts to (A) preserve intact their its business organizations organization and the business organization of the Business, (B) keep available to the Purchaser the services of the employees of the Seller and each SubsidiarySeller, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Seller, each Subsidiary Seller and the Business and (D) preserve their its current relationships with their its customers, suppliers and other persons with which they have had it has significant business relationships; and (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser's ’s prior written approval, any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.20(b3.16(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of Seller to be untrue or result in a breach of any covenant made by Seller in this Agreement.