Common use of OPERATION IN ORDINARY COURSE Clause in Contracts

OPERATION IN ORDINARY COURSE. From the date hereof until the earlier of the Closing or the date on which this Agreement terminates or is terminated pursuant to Article VIII, each Seller will, and the Principals shall cause each Seller to, (i) conduct the Business only in the ordinary course, in substantially the same manner in which it has been previously conducted and not undertake any business activities outside the ordinary course without the Buyer’s prior written consent, which consent shall not be unreasonably withheld; (ii) use its Commercially Reasonable Efforts to preserve intact its business organization and goodwill with respect to the Business, keep available the services of its officers, employees, independent contractors and leased labor as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it; (iii) consistent with applicable laws, confer on a regular and frequent basis, at the Buyer’s reasonable request, with representatives of the Buyer to report operational matters and the general status of ongoing operations; (iv) notify the Buyer of any emergency or other event which may reasonably be expected to constitute or result in a material adverse change in its Business; (v) not sell, lease, transfer, assign or relocate outside the Seller Facilities any of the Assets, other than Inventory sold in the ordinary course of business consistent with past custom and practice; (vi) not amend adversely to such Seller or terminate any Assigned Contract, including any amendment or other agreement to increase the current or future base rent under any Assumed Lease; (vii) maintain the Assets in their present state of repair (ordinary wear and tear excepted); (viii) not enter into any new real property lease without the Buyer’s express prior written consent; and (ix) not file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Assets, surrender any material right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Assets, and not take any other similar action, or omit to take any action relating to the filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action or omission would have the effect of increasing the present or future Tax liability or decreasing any present or future Tax asset of the Buyer, to the extent related to the Assets. The Buyer acknowledges that except as provided in this Agreement it has no rights to control, direct or approve the operations of the Business prior to the Closing.

OPERATION IN ORDINARY COURSE. (a) From the date hereof until the earlier of to the Closing or Date, Seller and the date on which this Agreement terminates or is terminated pursuant to Article VIII, each Seller willHolding Company shall, and the Principals Holding Company shall cause each the Seller to, to (i1) conduct the Business only its business in the ordinary course, in substantially the same manner in which it has been previously conducted and not undertake any business activities outside the ordinary course without the Buyer’s prior written consent, which consent shall not be unreasonably withheldOrdinary Course of Business; (ii2) use its Commercially Reasonable Efforts to preserve intact its business organization and goodwill not take actions with respect to the Seller Real Estate, the Deposits, the Assumed Liabilities, or the Assets except in the Ordinary Course of Business; (3) use commercially reasonable efforts, but in no event less than in Seller’s Ordinary Course of Business, keep available the services of to maintain good relationships with its officers, employees, independent contractors and leased labor as a group and maintain satisfactory relationships with customers, suppliers, distributors, customers licensors, licensees, and others other Persons having material business relationships with it; (iii) consistent with applicable lawsit and not provide communications to any such Persons without providing an advance copy thereof to the Buyer, confer on a regular and frequent basis, at which communication shall be subject to the Buyer’s reasonable request, with representatives of the Buyer to report operational matters and the general status of ongoing operationsapproval which will not be unreasonably withheld or delayed; (iv4) maintain its books of accounts and records in the usual, regular and ordinary manner accordance with Accounting Standards and Law; (5) maintain licenses and permits necessary for the conduct of its business and maintain compliance with all Laws, permits, licenses, regulatory requirements and agreements to which it is subject or by which it is bound; (6) provide Buyer with prompt written notice of any Claim instituted or threatened against Seller or Holding Company; (7) notify the Buyer of any emergency event, change, or other event effect which may individually or in the aggregate causes or would be reasonably be expected to cause or constitute or result in a material adverse change in breach of any of its Businessrepresentations, warranties, or covenants contained herein; (v8) use all best efforts to comply with the OCC Agreement, including all amendments, modifications, expansions and adjustments thereto; (9) not sellpurchase, lease, transfer, assign acquire or relocate outside the Seller Facilities take assignment of any Loans or pools of the Assets, other than Inventory sold in the ordinary course of business consistent with past custom and practiceLoans from any Person; (vi10) not amend adversely to such Seller or terminate any Assigned Contract, including any amendment or other agreement to increase the current or future base rent under any Assumed Lease; (vii) maintain the Assets in their present state of repair (ordinary wear and tear excepted); (viii) not enter into make any new real property lease without the Buyer’s express prior written consentLoan or acquire any new Loan that would be an Non-Compliant Loan; and (ix11) not file any amended Tax Returncontinue in full force and effect without modification all insurance policies, enter into any closing agreement, settle any Tax claim or assessment relating to the Assets, surrender any material right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Assets, and not take any other similar action, or omit to take any action relating to the filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action or omission would have the effect of increasing the present or future Tax liability or decreasing any present or future Tax asset of the Buyer, to the extent related to the Assets. The Buyer acknowledges that except as provided in this Agreement it has no rights to control, direct or approve the operations of the Business prior to the Closing.required by applicable Law

OPERATION IN ORDINARY COURSE. From the date hereof until the earlier of the Closing or the date on which this Agreement terminates or is terminated pursuant to Article VIIIterminates, each Seller will, and the Principals shall cause each Seller to, Sellers will (i) cause the Company to conduct the Business only in the ordinary coursecourse except to the extent contemplated by this Agreement, in substantially the same manner in which it has been previously conducted and not to undertake any business activities outside the ordinary course without the Buyer’s prior written consent, which consent shall not be unreasonably withheld; (ii) use its Commercially Reasonable Efforts commercially reasonable efforts to preserve intact its business organization and goodwill with respect to the Businessgoodwill, keep available the services of its officers, employees, independent contractors officers and leased labor employees as a group and maintain satisfactory its current relationships with suppliers, distributors, customers and others having business relationships with it; (iii) consistent with applicable laws, confer on a regular and frequent basis, at the Buyer’s reasonable requestrequest with reasonable advance notice, with representatives of the Buyer to report operational matters and the general status of ongoing operations; (iv) notify the Buyer of any emergency or other any change or event which may reasonably be expected to constitute or result in constitutes a material adverse change in its BusinessMaterial Adverse Effect; (v) not sellmodify, lease, transfer, assign increase or relocate outside the Seller Facilities expand in any manner any of the Assetsits compensation arrangements or Benefit Plans, other than Inventory sold except in the ordinary course of business consistent with past custom practice and practice; (vi) except for matters that relate solely to U.S. federal income taxes of the Company and the Subsidiary for the Pre-Closing Tax Period, not amend adversely change any express or deemed election relating to such Seller or terminate any Assigned Contract, including any amendment or other agreement to increase the current or future base rent under any Assumed Lease; (vii) maintain the Assets in their present state of repair (ordinary wear and tear excepted); (viii) not enter into any new real property lease without the Buyer’s express prior written consent; and (ix) not file any amended Tax Return, enter into any closing agreementTaxes, settle any Tax claim or assessment controversy relating to the AssetsTaxes, agree to any adjustment of any Tax attribute, surrender any material right or claim to claim a refund of Taxes, consent to any extension or waiver of the limitation statute of limitations period applicable to any material Taxes, Tax Return or claim or assessment relating for Taxes, amend any Tax Return, enter into any closing agreement with respect to the AssetsTaxes, and not take any other similar action, or omit fail to take any action relating to the filing of file any Tax Return when due (subject to applicable available extensions), or make any material change to any of its policies, procedures, principles or methods of accounting other than as required by a change of GAAP. Notwithstanding the foregoing, the Buyer agrees that, prior to Closing, the Company or the payment of Subsidiary may sell any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action or omission would have the effect of increasing the present or future Tax liability or decreasing any present or future Tax asset all of the Buyer, to trucks identified on Schedule 5.8 so long as the extent related to Company and the AssetsSubsidiary are released from the capitalized lease obligations associated therewith. The Buyer acknowledges that except as provided in this Agreement it has no rights to control, direct or approve the operations of the Business Company prior to the Closing.

OPERATION IN ORDINARY COURSE. From the date hereof until the earlier of the Closing or the date on which this Agreement terminates or is terminated pursuant to Article VIIIterminates, each Seller will, and the Principals Company shall cause each Seller to, (i) conduct the Business only in the ordinary course, in substantially the same manner in which it has been previously conducted and not to undertake any business activities outside the ordinary course without the Buyer’s prior written consent, which consent shall not be unreasonably withheld; (ii) use its Commercially Reasonable Efforts commercially reasonable efforts to preserve intact its business organization and goodwill with respect to the Business, and keep available the services of its officers, employees, independent contractors officers and leased labor employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with itgroup; (iii) consistent with applicable laws, confer on a regular and frequent basis, at the Buyer’s reasonable request, with representatives of the Buyer to report operational matters and the general status of ongoing operations; (iv) notify the Buyer of any emergency change in its Business or other event in the operation of its properties which may could reasonably be expected to constitute or result in a material adverse change in its BusinessSeller Material Adverse Effect; (v) not sellmodify, lease, transfer, assign increase or relocate outside the Seller Facilities expand in any manner any of the Assetsits compensation arrangements or Benefit Plans, other than Inventory sold compensation increases in the ordinary course of business consistent with past custom and practicefor any employee not party to an employment agreement; (vi) not amend adversely change any express or deemed election relating to such Seller or terminate any Assigned Contract, including any amendment or other agreement to increase the current or future base rent under any Assumed Lease; (vii) maintain the Assets in their present state of repair (ordinary wear and tear excepted); (viii) not enter into any new real property lease without the Buyer’s express prior written consent; and (ix) not file any amended Tax Return, enter into any closing agreementTaxes, settle any Tax claim or assessment controversy relating to the AssetsTaxes, agree to any adjustment of any Tax attribute, surrender any material right or claim to claim a refund of Taxes, consent to any extension or waiver of the limitation statute of limitations period applicable to any material Taxes, Tax Return or claim for Taxes, amend any Tax Return, enter into any closing agreement with respect to Taxes, fail to file any Tax Return when due, or assessment relating make any change to the Assetsany of its policies, procedures, principles or methods of financial or Tax accounting other than as required by a change of GAAP or applicable Tax Law, respectively; and (vii) not take any other similar actionaction described in Section 4.17(a) - (t). From the Sunday immediately preceding the Closing Date until the Closing, or omit to take the Company shall not make any action relating to the filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action or omission would have the effect of increasing the present or future Tax liability or decreasing any present or future Tax asset of the Buyer, to the extent related to the Assetscash distributions. The Buyer acknowledges that except as provided in this Agreement it has no rights to control, direct or approve the operations of the Business Company prior to the Closing.

OPERATION IN ORDINARY COURSE. From the date hereof until the earlier of the Closing or the date on which this Agreement terminates or is terminated pursuant to Article ARTICLE VIII, except as provided in this Agreement or in Schedule 6.1, each Seller will, and the Principals shall will cause each Seller to, Company to (i) conduct the Business only in the ordinary course, in substantially the same manner in which it has been previously conducted and not undertake any business activities outside the ordinary course without the Buyer’s prior written consent, which consent shall not be unreasonably withheldconducted; (ii) use its Commercially Reasonable Efforts to preserve intact its business organization and goodwill with respect to the Business, keep available the services of its officers, employees, independent contractors officers and leased labor employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it; (iii) consistent with applicable laws, confer on a regular and frequent basis, at the Buyer’s reasonable request, with representatives of the Buyer to report operational matters and the general status of ongoing operations; (iv) notify the Buyer of any emergency or other event which may reasonably be expected to constitute or result in a material adverse change in its Business; (v) not sell, lease, transfer, assign or relocate outside the Seller Facilities or the New Seller Facilities any of the AssetsCompanies’ assets, other than Inventory inventory sold in the ordinary course of business consistent with past custom and practice; (vi) not amend adversely to such Seller any Company or voluntarily terminate any Assigned Contract, including any amendment Material Contract or other agreement to increase the current or future base rent under any Assumed Lease; (vii) maintain the Assets assets and properties used in the Business in their present state of repair (ordinary wear and tear excepted); (viii) not enter into settle or compromise any new real property lease without the Buyer’s express prior written consentTax Liability; and (ix) not make or change any Tax election; (x) not make or change any Tax method of accounting; (xi) not prepare any Tax Return in a manner that is not consistent with the past custom and practice with respect to the treatment of items on such Tax Returns; (xii) not file any amended amendment to a Tax Return, enter into Return that would increase the Tax liability of any closing agreement, settle any Tax claim or assessment relating Company after the Closing; (xiii) not consent to the Assets, surrender any material right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment in respect of Taxes with any Governmental Authority; (xiv) not surrender any right to claim a refund of Taxes; (xv) except as required by applicable law, not materially alter the terms of any Company Benefit Plan, or establish, adopt or enter into any plan, agreement, program, policy, trust, fund or arrangement for the benefit of any current or former directors, officers, employees, consultants or other service providers in a manner that creates additional obligations that will continue after the Closing; (xvi) except in the ordinary course of business and consistent with past practices of the Company or as required by the terms and provisions of written contracts between the Company or any of its subsidiaries and an employee thereof as in existence on the date of this Agreement, materially increase the aggregate compensation or fringe benefits of any officer or employee of a Company or any of its subsidiaries in a manner that creates additional obligations that will continue after the Closing, and (xvii) timely take all actions necessary to extend or renew the terms of the Leases (other than the Leases relating to the Assets, and not take any other similar action, or omit to take any action relating to Seller Facilities set forth on Schedule 3.5) in accordance with the filing terms of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action or omission would have the effect of increasing the present or future Tax liability or decreasing any present or future Tax asset of the Buyer, to the extent related to the AssetsLeases. The Buyer acknowledges that except as provided in this Agreement it has no rights to control, direct or approve the operations of the Business prior to the Closing.

OPERATION IN ORDINARY COURSE. From the date hereof until the earlier of the Closing or the date on which this Agreement terminates or is terminated pursuant to Article VIII, each the Seller will, and the Principals shall cause each the Seller to, (i) conduct the Business only in the ordinary course, in substantially the same manner in which it has been previously conducted and not undertake any business activities outside the ordinary course without the Buyer’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned; (ii) use its Commercially Reasonable Efforts to preserve intact its business organization and goodwill with respect to the Business, keep available the services of its officers, employees, independent contractors and leased labor as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it; (iii) consistent with applicable laws, confer on a regular and frequent basis, at the Buyer’s reasonable request, with representatives of the Buyer to report operational matters and the general status of ongoing operations; (iviii) notify the Buyer of any emergency or other event which may reasonably be expected to constitute or result in a material adverse change in its BusinessMaterial Adverse Effect; (viv) not sell, lease, transfer, assign or relocate outside the Seller Facilities any of the Assets, other than Inventory sold in the ordinary course of business consistent with past custom and practicepractice or the disposition of equipment that is worthless or obsolete or worn out in the ordinary course of business, which is no longer used or useful in the conduct of its business or which is replaced by equipment of equal suitability and value; (viv) not amend adversely to such the Seller or terminate any Assigned Contract, including any amendment or other agreement to increase than in the current or future base rent under any Assumed Leaseordinary course of business; (viivi) maintain the Assets in their present state of repair (ordinary wear and tear excepted); (viiivii) not enter into any new real property lease without the Buyer’s express prior written consent; and (ixviii) not file any amended Tax Return, enter into any closing agreement, settle make or change any Tax claim election or assessment relating to the Assets, surrender any material right to claim a refund of Taxes, consent to any extension adopt or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Assets, and not take any other similar action, or omit to take any action relating to the filing of change any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action or omission would have the effect of increasing the present or future Tax liability or decreasing any present or future Tax asset of the Buyer, accounting method to the extent related that any of the foregoing actions relate to the Assetsany Asset. The Buyer acknowledges that except as provided in this Agreement it has no rights to control, direct or approve the operations of the Business prior to the Closing.