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

Operation of the Business Prior to Closing. Between the date of this Agreement and the Closing Date, except as contemplated in this Agreement, any of the other Acquisition Documents or as set forth in Schedule 5.14, or unless Buyer shall otherwise agree in writing (which consent shall not be unreasonably withheld or delayed), Seller shall use commercially reasonable efforts to: (a) operate the Business in the ordinary course of business in all material respects; (b) maintain the tangible assets that are Transferred Assets as a whole in all material respects in at least as good condition as they are being maintained on the date hereof, subject to normal wear and tear; (c) (i) not sell, assign, license or transfer any of the Transferred Assets, except transfers of immaterial Transferred Assets, sales of Business Inventory in the ordinary course of business and licenses of the Transferred Assets pursuant to non-exclusive licenses with third parties in the ordinary course of business and (ii) not permit any of the Transferred Assets to be subjected to any Lien, other than the Permitted Liens; (d) not fail to pay or discharge when due any Liability of which the failure to pay or discharge would cause any material damage or loss to the Transferred Assets, taken as a whole; (e) not amend any material term of or terminate any material Transferred Contract, other than in the ordinary course of business; (f) not initiate any Proceeding that relates exclusively to the Transferred Assets; (g) not make any material change in its accounting principles, methods or practices as they relate to the manner in which Seller keeps its accounting books and records relating to the Business, except for (i) any such change required by a change in GAAP or (ii) any change resulting from the preparation or audit of the Business Financial Statements; (h) not grant to any Business Employee any increase in compensation or in severance or termination pay, grant any severance or termination pay, or enter into any employment deferred compensation agreement or any similar agreement with any such employee, except as may be (i) required under Applicable Law, Seller’s termination policy (whether existing as of the date hereof or adopted hereafter) or any employment or termination agreement in effect on the date hereof or (ii) in the ordinary course of business; and (i) not enter into any agreement to take any action that would violate in any material respect any of the foregoing.

Operation of the Business Prior to Closing. Between the date of this Agreement and the Closing Date, except as contemplated in this Agreement, any of the other Acquisition Documents or as set forth in Schedule 5.14, or unless Buyer shall otherwise agree in writing (which consent shall not be unreasonably withheld or delayed), Seller shall use commercially reasonable efforts to: Transferor will (a) operate conduct the Business in the ordinary course of business (subject to the availability of funds under the Warehouse Line, which is currently available), and preserve the Business and Transferor’s Assets and Properties, in all material respects; each case, in substantially the same manner as heretofore conducted or preserved consistent with past practice, (b) use its best efforts to preserve intact the current business organization of Transferor, keep available the services of the current officers and employees of Transferor, and maintain the tangible assets that are Transferred Assets as a whole in all material respects in at least as good condition as they are being maintained on contractual relations and goodwill of Transferor with the date hereofAgencies, subject to normal wear Mortgagors, landlords, creditors and tear; others having business relationships with Transferor, (c) not cause or permit any amendment, supplement, waiver or modification to or of its articles of incorporation or bylaws or create any Subsidiaries; (id) not selldeclare, assignset aside, license make or transfer pay dividends or other distributions on or in respect of, or redeem or repurchase, directly or indirectly, any shares of capital stock of Transferor, unless it is permitted under Section 6 of the Pledge Agreement, dated the date of this Agreement, between MMA Financial Holdings, Inc. and Mud Duck, or issue or sell any shares of capital stock of Transferor, or any securities convertible or exchangeable for any such shares, except to Parent or MuniMae; (e) not take, and cause the Parent to not take, any action or knowingly omit to take any commercially reasonable action that it has the ability to take, which action or omission would result in a breach of any of the Transferred Assetsrepresentations and warranties set forth in Article VI; (f) not change in any respect its accounting practices, policies or principles, except transfers of immaterial Transferred Assetsas may be required by applicable Law or GAAP; (g) not incur new or increased Indebtedness that will be Assumed Liabilities, sales of Business Inventory except in the ordinary course of business consistent with past practices; (h) maintain balances in the Lender Loss Reserve Accounts of cash reserves that are adequate to satisfy the lender loss reserve requirements of Xxxxxx Xxx related to operational liquidity, and licenses of cash or cash equivalents (including commercial paper) adequate to satisfy the lender loss reserve requirements of Xxxxxx Mae related to restricted liquidity; (i) not engage in any of the Transferred Assets Tax matters activities described in Section 6.07(xiv); (j) not solicit Mortgagors for prepayment of Mortgage Loans; (k) maintain all insurance policies at such insurance coverage levels as required by any Servicing Agreements, Agency Contracts, and other handbooks, guidelines or requirements of the Agencies, including with respect to any casualty loss to any mortgaged property subject to a Mortgage Loan; (l) comply with all requirements pursuant to, and to non-exclusive licenses with third parties the extent within its control, maintain its ability to borrow under, its Warehouse Line; (m) not undertake any matters outside the ordinary course of business without the prior written consent of Acquiror; and (n) not commit to fund any new loans or enter into new forward commitments without the prior consent of Acquiror. An action shall be deemed to be in the ordinary course of business and (ii) not permit any of the Transferred Assets to be subjected to any Lien, other than the Permitted Liens; (d) not fail to pay or discharge when due any Liability of which the failure to pay or discharge would cause any material damage or loss to the Transferred Assets, taken as a whole; (e) not amend any material term of or terminate any material Transferred Contract, other than in the ordinary course of business; (f) not initiate any Proceeding that relates exclusively to the Transferred Assets; (g) not make any material change in its accounting principles, methods or practices as they relate to the manner in which Seller keeps its accounting books and records relating to the Business, except for (i) any such change required by a change in GAAP or (ii) any change resulting from the preparation or audit of the Business Financial Statements; (h) not grant to any Business Employee any increase in compensation or in severance or termination pay, grant any severance or termination pay, or enter into any employment deferred compensation agreement or any similar agreement only if it is consistent with any such employee, except as may be (i) required under Applicable Law, Seller’s termination policy (whether existing as of the date hereof or adopted hereafter) or any employment or termination agreement in effect on the date hereof or (ii) in the ordinary course of business; and (i) not enter into any agreement to take any action that would violate in any material respect any of the foregoingpast practice.

Operation of the Business Prior to Closing. Between the date of this Agreement and the Closing Date, except as contemplated in this Agreement, any of the other Acquisition Documents or (a) Except as set forth in on Schedule 5.148.4, or unless Buyer shall otherwise agree in writing (which consent shall not be unreasonably withheld or delayed)prior to the Closing, Seller shall use commercially reasonable efforts toSeller: (ai) shall operate the Business in the usual, regular and ordinary course of business (except with the prior written consent of Purchaser); (ii) shall maintain the Purchased Assets in good operating condition and repair; (iii) shall pay its accounts payable and pay and perform its other obligations when they become due and payable in the ordinary course of business consistent with prior practice, or when required to be performed, as the case may be it being agreed that, with respect to the trade payables of the Business included in all material respects;the Assumed Operating Liabilities (“Payables”), Seller will, prior to Closing, pay the Payables so that none of the Payables as of the Closing Date will be older than 45 days. (iv) shall maintain the books, accounts and records of Seller in the usual, regular and ordinary manner on a basis consistent with past practice; and (v) shall use its reasonable commercial efforts to assist Purchaser and WGT in connection with Purchaser's financing for the transactions contemplated by this Agreement. (b) maintain Except as set forth on Schedule 8.4, prior to the tangible assets that are Transferred Assets as a whole Closing, Seller: (i) shall not make any material increase in all material respects in at least as good condition as they are being maintained on the date hereofsalary, subject benefits, bonuses or other compensation (whether commission, benefits (retirement, severance or other) or other direct or indirect remuneration) payable to normal wear and tearemployees of the Business; (cii) shall not enter into any employment contract with any employee of the Business; (iiii) shall not sell, assign, license transfer, convey, lease, pledge, encumber or transfer otherwise dispose of or agree to sell, assign, transfer, convey, lease, pledge, encumber or otherwise dispose of any of the Transferred AssetsPurchased Assets or other material rights, except transfers of immaterial Transferred Assets, sales of Business Inventory in the ordinary course of business and licenses of the Transferred Assets pursuant to non-exclusive licenses with third parties in the ordinary course of business and (ii) not permit any of the Transferred Assets to be subjected to any Lien, other than the Permitted Liens; (d) not fail to pay or discharge when due any Liability of which the failure to pay or discharge would cause any material damage or loss to the Transferred Assets, taken as a whole; (e) not amend any material term of or terminate any material Transferred Contract, other than in the ordinary course of business; (fiv) shall not initiate any Proceeding that relates exclusively to the Transferred Assets; (g) not make any material change in its accounting principles, methods transfer or practices as they relate to the manner in which Seller keeps its accounting books and records relating to the Business, except for (i) any such change required by a change in GAAP or (ii) any change resulting from the preparation or audit of the Business Financial Statements; (h) not grant to any Business Employee any increase in compensation or in severance or termination pay, grant any severance or termination payright under, or enter into any employment deferred compensation agreement settlement regarding the breach or infringement of, any similar agreement Sierra Intellectual Property, or modify any existing right with respect thereto; (v) shall not enter into any such employee, except as may be (i) required under Applicable Law, Seller’s termination policy (whether existing as of the date hereof or adopted hereafter) or any employment or termination agreement in effect on the date hereof or (ii) Contract other than in the ordinary course of businessbusiness or enter into any material amendment, supplement or waiver in respect of any Assumed Contract or enter into any amendment, supplement or waiver with respect to any existing such Assumed Contract; (vi) shall not agree to incur any severance payment, "stay bonus", "sale bonus" or similar obligation by reason of this Agreement to any employee of the Business except for payments for cancellation of outstanding stock options of Seller or its Affiliates. (vii) shall not grant or extend any power of attorney relating to the Business; (viii) shall not make any commitment for capital expenditures or capital additions or improvements relating to the Business under which payment or expenditure obligations exceeding $25,000 in the aggregate will remain outstanding as of the Closing Date; (ix) shall not enter into or amend any collective bargaining or union contract or agreement covering any employees of the Business; (x) shall not institute, settle or agree to settle any Proceeding before any arbitrator, tribunal, court or other Governmental Authority that creates or imposes any continuing obligation or restriction on the Business; (xi) shall not in any other manner, modify, change or otherwise alter the fundamental nature of the Business as presently conducted; (xii) shall not make or permit any change to its accounting methods or principles; and (ixiii) shall not enter into otherwise commit, whether in writing or otherwise, to do, or take any agreement action or omit to take any action that would violate in any material respect result in, any of the foregoing.

Operation of the Business Prior to Closing. Between From the date of this Agreement until the Closing Date, Seller shall use its commercially reasonable efforts to, and use its commercially reasonable efforts to cause its Subsidiaries to, operate the Business in the ordinary course consistent with past practice, maintain relationships with the material customers and suppliers of the Business, retain the services of the Business Employees and keep the tangible Transferred Assets in good repair and condition (ordinary wear and tear excepted). Without limiting the generality of the foregoing, from the date of this Agreement until the Closing Date, except as expressly contemplated in by this Agreement, Agreement or any of the other Acquisition Documents or Documents, as set forth in Schedule 5.14, on Section 5.01 of the Disclosure Letter or unless Buyer shall otherwise agree in writing (which consent shall not be unreasonably withheld or delayed), Seller shall use commercially reasonable efforts tonot: (a) operate sell, transfer, license, encumber or otherwise dispose of, or subject to any Lien (other than Permitted Liens), any Transferred Assets or any interest therein, other than (i) immaterial dispositions of Transferred Assets (other than (A) Transferred Intellectual Property, (B) Transferred Domain Names, and (C) except in the Business ordinary course of business, the Software and Intellectual Property described in Section 2.01(r) or Section 2.01(s)) and (ii) Inventory sold, disposed of or licensed on a non-exclusive basis to customers in the ordinary course of business in all material respectsconsistent with past practice; (b) maintain the tangible assets enter into any Contract that are Transferred Assets as would be a whole in all material respects in at least as good condition as they are being maintained on Material Contract if entered into prior to the date hereof, subject to normal wear and tear; (c) (i) not sell, assign, license or transfer other than any of the Transferred Assets, except transfers of immaterial Transferred Assets, sales of Business Inventory such Contracts entered into in the ordinary course of business and licenses of the Transferred Assets pursuant to non-exclusive licenses (including Contracts with third parties in the ordinary course of business and customers or vendors but excluding (i) leases for real property, (ii) vendor or supplier Contracts that are not permit any of cancelable by the Transferred Assets Buyer Parties or their Subsidiaries on 90 days or less notice or (iii) Inbound License Agreements with payments to be subjected third parties borne by Seller, the Buyer Parties or their respective Subsidiaries reasonably expected to any Lien, other than exceed $50,000 per year individually or $200,000 per year in the Permitted Liensaggregate and not cancelable by the Buyer Parties or their Subsidiaries on 90 days or less notice); (dc) not fail to pay or discharge when due any Liability of which the failure to pay or discharge would cause any material damage or loss to the Transferred Assetstransfer, taken as a whole; (e) not assign, materially amend any material term of or terminate any Material Assumed Contract or waive or grant any release of a material Transferred right in any Material Assumed Contract, other than amendments of customer Contracts in the ordinary course of business; (d) grant or announce any increase in the salaries, compensation, bonuses or other benefits payable to any Business Employees, other than (i) as required by Applicable Law, (ii) pursuant to any plans, programs or agreements existing on the date hereof, as may be amended by Seller in the ordinary course of business (iii) pursuant to the implementation of a new company-wide plan, program or arrangement applicable to all or substantially all employees of Seller or (iv) other ordinary increases in salaries, bonuses (including equity-based incentives) or commissions consistent with the past practices of Seller; provided that any such increase in cash compensation set forth in Section 5.01(d)(iv) shall not, in the aggregate, be in excess of five percent (5%) of the current aggregate level of cash compensation payable to Business Employees as of the date hereof. (e) make any change in any method of accounting or accounting practice or policy that affects the Business, except as required by GAAP or any change in the accounting practices of Seller generally; (f) not initiate grant any Proceeding that relates exclusively to allowances, sales, concessions or discounts outside the Transferred Assetsordinary course of business, collect Accounts Receivables on an accelerated schedule or otherwise outside the ordinary course of business or sell Inventory materially in excess of reasonably anticipated consumption for the near term outside the ordinary course of business; (g) initiate, compromise or settle any Legal Action with respect to the Business (other than in connection with the enforcement of Seller’s rights under this Agreement), other than Legal Actions with respect to which such settlement does not make involve any monetary obligations of Seller or its Subsidiaries in excess of $100,000 and does not include any injunctive or other equitable remedies or any material change in its accounting principles, methods or practices as they relate limitations on the ability of Buyer to use and exploit the manner in which Seller keeps its accounting books and records relating to the Business, except for (i) any such change required by a change in GAAP or (ii) any change resulting from the preparation or audit of the Business Financial StatementsTransferred Intellectual Property; (h) not grant to any Business Employee any increase in compensation or in severance or termination pay, grant any severance or termination pay, or enter into any employment deferred compensation agreement Contract that contains any provision that, as a result of the transactions contemplated by this Agreement or the other Acquisition Documents, would (assuming that the other party’s consent or approval is not obtained) result in any penalty, additional payment, forfeiture or other similar agreement with any such employee, except as may Liability that would be payable or suffered by Buyer; (i) required under Applicable Lawdirectly or indirectly engage in, Seller’s termination policy (whether existing as enter into or amend any Contract or Indebtedness with any of the date hereof directors, officers, stockholders or adopted hereafter) or any employment or termination agreement in effect on other Affiliates of Seller relating exclusively to the date hereof or (ii) Business except in the ordinary course of business; andor (ij) not enter into any agreement agree or commit to take any action that would violate in any material respect do any of the foregoing.

Operation of the Business Prior to Closing. Between the date of this Agreement and the Closing Date, except as contemplated in by this Agreement, Agreement or any of the other Acquisition Documents or as set forth in Schedule 5.14, or unless Buyer shall otherwise agree in writing (which consent shall not be unreasonably withheld or delayed), Seller shall use commercially reasonable efforts toshall: (a) use its commercially reasonable efforts to operate the Business in the ordinary course of business in all material respectsconsistent with past practice; (b) maintain the tangible assets that are Transferred Assets as a whole in all material respects in at least as good condition as they are being maintained on the date hereof, subject to normal wear and tear; (c) (i) not sell, assigntransfer, license encumber or transfer otherwise dispose of any Transferred Assets or any interest therein, other than immaterial dispositions and Inventory sold or disposed of the Transferred Assets, except transfers of immaterial Transferred Assets, sales of Business Inventory in the ordinary course of business and licenses of consistent with past practice; (c) not cause the Transferred Assets pursuant Business to non-exclusive licenses with third parties enter into any contract, agreement or arrangement that would be a material Contract if entered into prior to the date hereof, other than any such contracts, agreements or arrangements entered into in the ordinary course of business and (ii) not permit any of the Transferred Assets to be subjected to any Lienincluding contracts, other than the Permitted Liensagreements or arrangements with customers, vendors or clients); (d) not fail to pay amend or discharge when due terminate any Liability of which the failure to pay or discharge would cause any material damage or loss to the Transferred Assets, taken as a wholeAssumed Contract; (e) not amend fail to timely pay or discharge any Liability where such failure would cause a material term impairment of value to, or terminate any material damage to, the Transferred Contract, other than in the ordinary course of businessAssets; (f) not initiate grant or announce any Proceeding that relates exclusively increase in the salaries, bonuses or other benefits payable to any Business Employees, other than (i) as required by Applicable Law, (ii) pursuant to any Employee Plan, (iii) pursuant to the Transferred Assetsimplementation of a new company-wide plan or program of Seller or (iv) other ordinary increases not inconsistent with the past practices of Seller; (g) not make any material change in its any method of accounting principles, methods or practices as they relate to the manner in which Seller keeps its accounting books and records relating to practice or policy that affects the Business, except for (i) any such change as required by a GAAP or any change in GAAP or (ii) any change resulting from the preparation or audit accounting practices of the Business Financial Statements;Seller generally; and (h) use its commercially reasonable efforts to maintain good relationships (but in any event not grant to any Business Employee any increase in compensation or in severance or termination pay, grant any severance or termination pay, or enter into any employment deferred compensation agreement or any similar agreement with any such employee, except be construed as may be (i) required under Applicable Law, Seller’s termination policy (whether existing requiring a more favorable relationship than that which existed as of the date hereof or adopted hereafterof this Agreement) or any employment or termination agreement in effect on with the date hereof or (ii) in the ordinary course of business; and (i) not enter into any agreement to take any action that would violate in any material respect any customers of the foregoingBusiness set forth on Schedule 3.16 of the Disclosure Schedule.

Operation of the Business Prior to Closing. (a) Between the date of this Agreement and the Closing Date, except Sellers will, and will cause the Company to, (i) conduct the business of the Company in the ordinary course of business, and preserve the Company’s Assets and Properties, in each case, in substantially the same manner as contemplated heretofore conducted or preserved consistent with past practice, (ii) use reasonable efforts to preserve intact the current business organization of the Company, keep available the services of the current officers and employees of the Company, and maintain the contractual relations and goodwill of the Company with, Fxxxxx Mxx, GNMA, HUD, Fxxxxxx Mac, borrowers, landlords, creditors and others having business relationships with the Company, (iii) not cause or permit any amendment, supplement, waiver or modification to or of its articles of incorporation or bylaws or create any Subsidiaries; (iv) not declare, set aside, make or pay dividends or other distributions on or in this Agreementrespect of, or redeem or repurchase, directly or indirectly, any shares of capital stock of the Company, or issue or sell any shares of capital stock of the Company, or any securities convertible or exchangeable for any such shares; (v) not take any action or omit to take any action, which action or omission would result in a breach of any of the other Acquisition Documents or as representations and warranties set forth in Schedule 5.14Article III; (vi) not change in any respect its accounting practices, policies or unless Buyer shall otherwise agree principles, except as may be required by applicable law or GAAP; (vii) pay down existing Indebtedness, and not incur new or increased Indebtedness, except in writing the ordinary course of business consistent with past practices; and (viii) not undertake any matters outside the ordinary course of business without the prior written consent of Purchaser which consent shall not be unreasonably withheld or delayed), Seller delayed and if not withheld or given within ten (10) days of notice of such undertaking shall use commercially reasonable efforts to: (a) operate the Business be deemed given. An action shall be deemed to be in the ordinary course of business in all material respects;only if it is consistent with past practice. (b) maintain Notwithstanding any provision of Section 5.05(a)(iv) to the tangible assets contrary, the Company may make distributions of cash and cash equivalents to Sellers prior to the Closing Date, including the assignment of that are Transferred Assets promissory note identified on Schedule 3.27 payable by Southview Senior Living LLC to the Company; provided, however, that after giving effect to such distributions the Company shall have working capital (as a whole determined in all material respects in accordance with Section 2.06) of at least as good Five Hundred Thousand Dollars ($500,000) and shall be in full compliance with each net worth, reserve, liquidity and other financial condition as they are being maintained on required by Fxxxxx Mxx, GNMA, HUD or Fxxxxxx Mac; and provided further, however, that the date hereof, subject Company shall not incur any Indebtedness in order to normal wear and tear;make any such distribution. (c) (iNotwithstanding any provision of Section 5.05(a) not sell, assign, license or transfer any of the Transferred Assets, except transfers of immaterial Transferred Assets, sales of Business Inventory in the ordinary course of business and licenses of the Transferred Assets pursuant to non-exclusive licenses with third parties in the ordinary course of business and (ii) not permit any of the Transferred Assets to be subjected to any Lien, other than the Permitted Liens; (d) not fail to pay or discharge when due any Liability of which the failure to pay or discharge would cause any material damage or loss to the Transferred Assetscontrary, taken as a whole; (e) not amend any material term of or terminate any material Transferred Contract, other than in the ordinary course of business; (f) not initiate any Proceeding Company may take those actions that relates exclusively to the Transferred Assets; (g) not make any material change in its accounting principles, methods or practices as they relate to the manner in which Seller keeps its accounting books and records relating to the Business, except for (i) any such change required by a change in GAAP or (ii) any change resulting from the preparation or audit of the Business Financial Statements; (h) not grant to any Business Employee any increase in compensation or in severance or termination pay, grant any severance or termination pay, or enter into any employment deferred compensation agreement or any similar agreement with any such employee, except as may be (i) required under Applicable Law, Seller’s termination policy (whether existing as of the date hereof or adopted hereafter) or any employment or termination agreement in effect are described on the date hereof or (ii) in the ordinary course of business; and (i) not enter into any agreement to take any action that would violate in any material respect any of the foregoingExhibit H attached hereto.

Operation of the Business Prior to Closing. Between the date of this Agreement and the Closing Date, except as contemplated in permitted by this Agreement, Agreement or any of the other Acquisition Documents or as set forth in Schedule 5.145.13, or unless Buyer shall otherwise agree consent in writing (which consent shall not be unreasonably withheld or delayed), Seller the Selling Parties and Transferred Sub shall use commercially reasonable efforts to: (a) to operate the Business in the ordinary course of business consistent with past practice and shall use commercially reasonable efforts to preserve the material business relationships with customers, suppliers, distributors and others with whom the Selling Parties deal in all material respects;connection with the Business in the ordinary course. Without limiting the generality of the foregoing, between the date of this Agreement and the Closing Date, unless Buyer shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), except as contemplated by this Agreement, any other Acquisition Document or as set forth on Schedule 5.13, Seller shall not (and shall cause each other Selling Party and the Transferred Sub not to): (ba) fail to maintain the tangible assets that are Transferred Assets as a whole in all material respects in at least as good condition as they are being maintained by the Selling Parties on the date hereof, subject to normal wear and tear; (cb) (i) not sell, assign, license or transfer any of the Transferred Shares and not permit any of the Transferred Shares to be subjected to any Share Encumbrances; (c) sell, assign, or transfer any of the Transferred Assets, except transfers of immaterial Transferred Assets, sales of Business Inventory in the ordinary course of business business, consistent with past practice, and licenses of the Transferred Assets pursuant to non-exclusive licenses with third parties in the ordinary course of business and (ii) not permit any of the Transferred Assets to be subjected to any Lien, other than (i) the Permitted LiensLiens and (ii) Liens that would not reasonably be expected to have a Seller Material Adverse Effect; (d) not fail to pay or discharge when due any Liability of which the failure to pay or discharge would reasonably be expected to cause any material damage or loss to the Transferred AssetsAssets and Transferred Shares or Transferred Sub, taken as a whole; (e) not amend accelerate, amend, terminate, modify or cancel any material term of or terminate any material Transferred Material Contract, other than in the ordinary course of business; (f) not initiate enter into or renew (other than an automatic renewal) any Proceeding Contract that exclusively relates exclusively to the Business that (i) provides for payment obligations (whether by a Selling Party or the counterparty thereto) in an aggregate amount for such Contract greater than One Million Dollars ($1,000,000) or which is reasonably likely to extend beyond 2010 (a “Covenant Contract”); (ii) would be a Covenant Contract that, according to its terms, prohibits assignment to Buyer or Buyer Designees (or a purchaser of the Transferred Assets) without the consent of the counterparty thereto; or (iii) is a Contract entered into by the Handheld Platform Group of Seller or the Mobile Wireless Group of Seller that would impose on Buyer or any Buyer Designee a non-competition obligation or other use restriction; (g) not make any material change in fail to maintain its accounting principles, methods or practices as they relate to the manner in which Seller keeps its accounting books and records relating to in the Businessusual, regular and ordinary manner on a basis consistent with prior years, except for (i) any such change required by a change in GAAP or (ii) any GAAP, change resulting from the preparation or audit of the financial statements of the Business Financial Statementsas contemplated in Section 6.01(f), or a change in the accounting practices of Seller or Transferred Sub generally; (h) not grant to any Business Employee any increase in compensation (except for one-time bonuses to selected Business Employees) or in severance or termination pay, grant any severance or termination pay, or enter into any employment deferred compensation agreement or any similar agreement with any such employee, except as may be (i) required under Applicable Law, Seller’s termination policy (whether existing as of the date hereof or adopted hereafter) or any employment or termination agreement in effect on the date hereof or (ii) in the ordinary course of business; (i) acquire or agree to acquire any asset that would constitute Transferred Assets, except in the ordinary course of business; (j) reduce or discount any prices of the Products, except in the ordinary course consistent with past practice; and (ik) not enter into any agreement agree or consent to take any action that would violate in any material respect do any of the foregoing. Notwithstanding the foregoing, between the date hereof and the Closing Date, subject to Section 2.05, Seller and its Subsidiaries may transfer from the Transferred Sub (i) the assets set forth on Schedule 2.05(a), (ii) all Cash, Accounts Receivable and Inventory, and (iii) all other Contracts, employees and other assets and Liabilities, in each case, that are not exclusively related to the Business.

Operation of the Business Prior to Closing. Between the date of this Agreement and the Closing Date, except Except as expressly contemplated in this Agreement, any or as otherwise consented to previously in writing by Buyer, from the date hereof through the Closing, Xxxxxxxx and the Members covenant and agree not to, and Xxxxxxxx agrees to cause each of the other Acquisition Documents or as set forth in Schedule 5.14, or unless Buyer shall otherwise agree in writing (which consent shall Companies not be unreasonably withheld or delayed), Seller shall use commercially reasonable efforts to: (a) operate conduct the Business business of each of the Companies other than in the ordinary course Ordinary Course of business in all material respectsBusiness; (b) maintain take any action that, if taken after the tangible assets that are Transferred Assets as a whole Latest Balance Sheet Date, would have been required to be disclosed in all material respects in at least as good condition as they are being maintained on Section 3.8 of the date hereof, subject to normal wear and tearDisclosure Schedule; (c) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of (i) not sellany Equity Securities, assign, license or transfer any of the Transferred Assets, except transfers of immaterial Transferred Assets, sales of Business Inventory in the ordinary course of business and licenses of the Transferred Assets pursuant to non-exclusive licenses with third parties in the ordinary course of business and (ii) not permit any of the Transferred Assets securities convertible into Equity Securities, or (iii) any rights, warrants, calls, subscriptions or options to be subjected to any Lien, other than the Permitted Liensacquire Equity Securities; (d) not fail to pay or discharge when due amend any Liability of which the failure to pay or discharge would cause Organizational Documents of any material damage or loss to of the Transferred Assets, taken as a wholeCompanies; (e) not amend allow any material term insurance policies to lapse without renewal or replacement on commercially reasonable terms; (f) enter into any Contract with any Affiliate; (g) take or omit to take any action that has or would reasonably be expected to have the effect of accelerating revenues to pre-Closing periods that would otherwise be expected to take place or be incurred in post-Closing periods, delay or postpone the payment of any accounts payable, or accelerate the collection of or terminate discount any material Transferred ContractAccounts Receivable, in each case, other than in the ordinary course Ordinary Course of business; (f) not initiate any Proceeding that relates exclusively to the Transferred Assets; (g) not make any material change in its accounting principles, methods or practices as they relate to the manner in which Seller keeps its accounting books and records relating to the Business, except for (i) any such change required by a change in GAAP or (ii) any change resulting from the preparation or audit of the Business Financial Statements; (h) not grant to make any Business Employee any increase investment in compensation or in severance or termination pay, grant any severance or termination pay, or enter into any employment deferred compensation agreement purchase all or any similar agreement with any such employee, except as may be (i) required under Applicable Law, Seller’s termination policy (whether existing as significant portion of the date hereof property, equity or adopted hereafter) or assets of any employment or termination agreement in effect on the date hereof or (ii) in the ordinary course of business; andother Person; (i) sell, lease, grant, license, sublicense or otherwise transfer, assign or dispose of, or abandon, subject to any Encumbrance (other than a Permitted Encumbrance) or let lapse or expire, any assets or properties of any of the Companies (including Permits) (other than (x) immaterial tangible assets and immaterial Intellectual Property Assets in the Ordinary Course of Business, (y) the expiration of any Intellectual Property Registration in accordance with its maximum statutory term or because the subject Intellectual Property is both not material and not used and the Intellectual Property Registration therefor may not be maintained or (z) the sale or disposition inventory or obsolete tangible assets in the Ordinary Course of Business), or disclose any Trade Secrets that are Owned IP (other than pursuant to a written confidentiality agreement entered into in the Ordinary Course of Business with reasonable protections of, and preserving all rights of the Companies with respect to, such Trade Secrets); (j) incur any Indebtedness other than in the Ordinary Course of Business; (k) enter into into, modify, amend or terminate any agreement Material Contract, without the consent of Buyer; (l) declare or pay any dividends or make distributions on or in respect of any of the capital stock or other equity interests of any of the Companies, or redemption, purchase or acquisition of the capital stock or equity securities of any of the Companies; or (m) commit, agree to take or enter any Contract to do any of the foregoing or any action or omission that would violate result in any material respect any of the foregoing.

Operation of the Business Prior to Closing. Between the date of this Agreement and the Closing Date, except Except (i) as expressly contemplated in by this Agreement, any of the other Acquisition Documents or (ii) as set forth in Schedule 5.14Section 3.10 of the Disclosure Letter, (iii) as required by applicable Law or Data Security Requirements, or unless Buyer shall otherwise agree (iv) as approved in writing advance by Investors (which consent approval shall not be unreasonably withheld withheld, conditioned or delayed), Seller from the Initial Signing Date through the Closing, the Company shall, and shall use commercially reasonable efforts cause its Subsidiaries to: (a) operate the Business , operate, in the ordinary course of business in all material respectsrespects and use commercially reasonable efforts to preserve intact in all material respects its current business organization, ongoing businesses and significant relationships with third parties. Except (1) as expressly contemplated by this Agreement, (2) as set forth in Section 3.10 of the Disclosure Letter or (3) as required by applicable Law or Data Security Requirements, from the Initial Signing Date through the Closing, the Company and its Subsidiaries, without the prior written consent of Investors (which consent shall not be unreasonably withheld, conditioned or delayed), shall not: (a) declare, or make payment in respect of, any dividend or other distribution upon any shares of Common Stock or other capital stock or equity interest of the Company; (b) maintain redeem, repurchase or acquire any shares of capital stock or other equity securities of the tangible assets that are Transferred Assets as a whole in all material respects in at least as good condition as they are being maintained on the date hereofCompany or any of its Subsidiaries, subject to normal wear and tear; (c) other than (i) not sellrepurchases of shares (A) approved by the Board of Directors and publicly announced prior to the Initial Signing Date, assign(B) made in an “open market” transaction at the then-prevailing price or through an “accelerated share repurchase” on customary terms or (C) from employees, license officers or transfer directors of the Company or any of the Transferred Assets, except transfers of immaterial Transferred Assets, sales of Business Inventory its Subsidiaries in the ordinary course of business and licenses consistent with past practice pursuant to any of the Transferred Assets Company’s agreements or plans in effect as of the Initial Signing Date and (ii) shares withheld on the vesting of employee stock awards; (c) authorize, issue or reclassify any capital stock, or securities exercisable for, exchangeable for or convertible into shares, of the Company or any of its Subsidiaries other than (i) the authorization and issuance of the shares contemplated by this Agreement and (ii) issuances pursuant to non-exclusive licenses with third parties any of the Company’s agreements or plans in effect as of the Initial Signing Date of shares, or securities exercisable for, exchangeable for or convertible into shares, of the Company to (A) officers or directors of the Company or any of its Subsidiaries in the ordinary course of business and consistent with past practice or (iiB) not permit non-officer employees of the Company or any of the Transferred Assets to be subjected to any Lien, other than the Permitted Liensits Subsidiaries; (d) not fail to pay except for the Charter Amendment and filing of the Certificate of Designations (after obtaining the Requisite Vote at the Company Stockholders’ Meeting), amend or discharge when due otherwise change, or waive any Liability provision of, the Certificate of which Incorporation or the failure to pay Bylaws or discharge would cause any material damage or loss to the Transferred Assetsorganizational document of any Subsidiary, taken including as a wholeresult of a merger, amalgamation, consolidation or other similar or extraordinary transaction; (e) not amend sell, assign, transfer, convey, lease or otherwise dispose of any material term assets or properties of the Company or terminate any material Transferred Contractof its Subsidiaries, other than except pursuant to a binding agreement in effect as of the ordinary course Initial Signing Date (of businesswhich a copy has been provided to Investors prior to the date of Initial Signing Date); (f) not initiate any Proceeding that relates exclusively to the Transferred Assets; (g) not make any material change in loans or advances of money to any Person (other than the Company and its accounting principles, methods or practices as they relate to the manner in which Seller keeps its accounting books and records relating to the BusinessSubsidiaries), except for (i) loans made pursuant to any such change required by a change in GAAP or Incentive Plan, (ii) any change resulting from the preparation advances to employees or audit officers of the Business Financial StatementsCompany or any of its Subsidiaries for expenses incurred in the ordinary course of business consistent with past practice or (iii) trade credit extended to customers, franchisees and other business counterparties in the ordinary course of business consistent with past practice; (g) any action or transaction that would result in an adjustment to the conversion price pursuant to Section 11 of the Certificate of Designations (assuming for such purpose that the Purchased Shares were issued and outstanding as of the Initial Signing Date); (h) not grant to incur any Business Employee any increase in compensation or in severance or termination pay, grant any severance or termination payIndebtedness, or enter into Liens, including any employment deferred compensation agreement obligations under financing type leases, or make any similar agreement with any such employee, except as may be (i) required under Applicable Law, Seller’s termination policy (whether existing as of the date hereof or adopted hereafter) or any employment or termination agreement in effect on the date hereof or (ii) in the ordinary course of business; andguarantees; (i) not enter into commit to or make any agreement to capital expenditure in excess of $1,000,000; (j) make any acquisition of stock or assets of any Person, or merge or consolidate with any Person; (k) take any action that would violate action, or refrain from taking any action, in breach in any material respect of the Company’s obligations under the Promissory Note; or (l) authorize or enter into a contract or otherwise make any commitment to do any of the foregoing.

Operation of the Business Prior to Closing. Between Except as otherwise contemplated by this Agreement, or otherwise disclosed on Schedule 7.2, between the date of this Agreement hereof and the Closing Date(except as specifically required or permitted by this Agreement or required by Law, or except as Buyer shall otherwise consent thereto), Seller shall use its commercially reasonable efforts to, and shall cause its Subsidiaries to, use their commercially reasonable efforts to operate the Business in the ordinary course consistent with past practice, maintain relationships with the material customers and suppliers of the Business, retain the services of current officers and other key employees and keep the tangible Purchased Assets in good repair and condition (ordinary wear and tear excepted). In furtherance of the foregoing, except as contemplated in specifically required or permitted by this Agreement, any of the other Acquisition Documents Agreement or as set forth in Schedule 5.14required by Law, or unless Buyer shall except as Buyer’s prior written consent to do otherwise agree in writing is obtained (which consent shall not be unreasonably withheld or delayed), Seller shall use commercially reasonable efforts not, and shall cause its Subsidiaries not to: (a) operate the Business sell, transfer, license, encumber or otherwise dispose of, or subject to any Lien, any Purchased Assets or any interest therein, other than (i) immaterial dispositions of Purchased Assets, and (ii) Inventory sold or disposed of in the ordinary course Ordinary Course of business in all material respectsBusiness; (b) maintain establish any new Seller Plan for the tangible assets that are Transferred Assets employees or former employees of the Seller Entity, or amend or modify any existing Seller Plan as a whole to any benefit or in all any other way; (c) undertake any new material respects business opportunity outside the Ordinary Course of Business; (d) grant or announce any increase in at least the salaries, compensation, bonuses or other benefits payable to any officers or employees, other than (i) as good condition as they are being maintained required by applicable Law, (ii) pursuant to any plans, programs or agreements existing on the date hereof, subject to normal wear and tear; (c) (i) not sell, assign, license or transfer any of the Transferred Assets, except transfers of immaterial Transferred Assets, sales of Business Inventory as may be amended by Seller in the Ordinary Course of Business, or (iii) other ordinary course of business and licenses of the Transferred Assets pursuant to nonincreases in salaries, bonuses (including equity-exclusive licenses based incentives) or commissions consistent with third parties in the ordinary course of business and (ii) not permit any of the Transferred Assets to be subjected to any Lien, other than the Permitted Liens; (d) not fail to pay or discharge when due any Liability of which the failure to pay or discharge would cause any material damage or loss to the Transferred Assets, taken as a wholepast practices; (e) not amend any material term of or terminate any material Transferred Contract, other than except in the ordinary course Ordinary Course of businessBusiness, create or incur any Indebtedness and, even if in the Ordinary Course of Business, then not in excess of $100,000 in the aggregate; (f) not initiate except in the Ordinary Course of Business, make or commit to make any Proceeding that relates exclusively to capital expenditure in amounts greater than $100,000 individually or $250,000 in the Transferred Assetsaggregate; (g) not except in the Ordinary Course of Business, pay, prepay or discharge any Liability or fail to pay any Liability when due; (h) make any material change changes in its accounting principles, methods or practices as they relate to the manner in which Seller keeps or revalue its accounting books and records relating to the Businessassets, except for (i) those changes required by GAAP, and (ii) changes in its tax accounting methods or practices that may be necessitated by changes in applicable Tax Laws; (i) issue, sell, pledge, encumber, authorize the issuance of, enter into any contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of its capital stock, or any stock appreciation rights, or any option, warrant, conversion, or other right to acquire any such change required stock, or any security convertible into any such stock, or pay or declare or agree to pay or declare any dividend or other distribution with respect to any of its capital stock other than cash dividends to allow the Seller Shareholders to pay their Tax liability with respect to taxable income attributable to their ownership interests in Seller; (j) make any loan or otherwise arrange for the extension of credit to any employee or increase the aggregate amount of any loan currently outstanding to any employee, other than in the Ordinary Course of Business; (k) purchase or redeem, or agree to purchase or redeem, any of its capital stock; (l) transfer or license to any Person or otherwise extend, amend or modify any of the Proprietary Rights of any Seller Entity, other than in the Ordinary Course of Business; (m) acquire or agree to acquire by merging or consolidating with, or by purchasing a change substantial portion of the assets of, or by any other manner, any business or any Person or division thereof; (n) (i) enter into any new Contract material to the Business, other than in GAAP the Ordinary Course of Business, or (ii) materially modify, amend or terminate any change resulting from the preparation or audit of Contract material to the Business Financial Statementsto which Seller is a party or waive, release, or assign any material rights or claims thereunder; (ho) not grant take any actions that would have a Material Adverse Effect on Seller; (p) commence a legal proceeding or threaten to commence a legal proceeding against any Business Employee any increase in compensation or in severance or termination payPerson (including, grant any severance or termination paywithout limitation, or for patent infringement); (q) enter into any employment deferred compensation agreement or any similar agreement with any such employee, except as may be new Contract (i) required under Applicable Law, Seller’s termination policy (whether existing as of the date hereof or adopted hereafter) or any employment or termination agreement in effect on the date hereof or (ii) other than purchase orders in the ordinary course Ordinary Course of businessBusiness) to purchase any raw materials, spare parts and other materials and supplies; andor (ir) not enter into authorize any agreement of, or commit or agree to take any action that would violate in any material respect any of of, the foregoingforegoing actions.

Operation of the Business Prior to Closing. Between From the date of this Agreement and until the Closing Date, except as contemplated in this AgreementSeller shall, any of the other Acquisition Documents or as set forth in Schedule 5.14and shall cause its Affiliates to, or unless Buyer shall otherwise agree in writing (which consent shall not be unreasonably withheld or delayed), Seller shall use commercially reasonable efforts to: (a) operate the Business in the ordinary course of business consistent with past practice and shall use commercially reasonable efforts, and Seller shall cause its Affiliates to use commercially reasonable efforts, to maintain the present relationships with the customers, vendors, suppliers, distributors and resellers of the Business. Without limiting the generality of the foregoing, from the date of this Agreement until the Closing Date, except as contemplated by this Agreement or any of the other Acquisition Documents, or unless Purchaser shall otherwise agree in all material respectswriting in advance, Seller shall not: (a) sell, lease, assign, license, sublicense, transfer, encumber or otherwise dispose of, in whole or in part, any Transferred Assets or any interest therein, except for cash applied in payment of liabilities, in the usual and ordinary course of business; (b) maintain cause the tangible assets that are Transferred Assets as a whole in all Business to enter into any material respects in at least as good condition as they are being maintained on the date hereof, subject to normal wear and tearContract; (c) amend or terminate any material Contract, Permit, license with respect to Intellectual Property or agreement with respect to real property; (d) amend or otherwise change the constitutional documents of Seller or introduce any material change with respect to the operation of Seller; (e) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Seller or make any material reductions in force; (f) grant or announce any increase in the salaries, bonuses, severance or other benefits payable to any Business Employees, other than (i) not sellas required by Applicable Law or (ii) pursuant to any plans, assign, license programs or transfer agreements existing on the date hereof; (g) cancel any Indebtedness or other claims of the Transferred AssetsBusiness, except transfers of immaterial Transferred Assets, sales of Business Inventory in the ordinary course of business and licenses consistent with past practice; (h) incur any material capital expenditures or any material obligations or liabilities in respect thereof with respect to the Business; (i) make any change in any method of accounting or accounting practice or policy that affects the Business, except as required by US GAAP; (j) make or change any election with respect to Taxes inconsistent with past practices or settle or compromise any federal, state, local or foreign Liability with respect to Taxes, Lien, assessment, refund, offset or audit; agree to an extension of a statute of limitations in connection with any Legal Action related to Taxes; fail to file any income or other Tax Return when due (or, alternatively, fail to file for available extensions) or fail to cause such Tax Returns when filed to be complete and accurate in all respects; fail to pay any amount of Taxes when due; or file any amended Tax Returns; (k) with respect to the Business and/or any Transferred Assets pursuant to non-exclusive licenses with third parties Asset, pay, discharge or satisfy any Liabilities or Liens (other than the payment, discharge or satisfaction in the ordinary course of business and (ii) not permit any consistent with past practices of Liabilities reflected or reserved against in the Transferred Assets to be subjected to any Lien, other than Financial Statements or incurred since the Permitted LiensBalance Sheet Date in the ordinary course of business consistent with past practices); (dl) not with respect to the Business and/or any Transferred Asset, fail to pay or discharge when due any Liability Accounts Payable and other Liabilities in the ordinary course of which the failure to pay or discharge would cause any material damage or loss to the Transferred Assets, taken as a wholebusiness consistent with past practices; (em) not amend with respect to the Business and/or any material term Transferred Asset, modify the payment terms or payment schedule of or terminate any material Transferred Contract, Accounts Receivables other than in the ordinary course of businessbusiness consistent with past practices, accelerate the collection of Accounts Receivables or sell, securitize, factor or otherwise transfer any Accounts Receivable; (fn) not initiate any Proceeding that relates exclusively with respect to the Business and/or any Transferred AssetsAsset, disclose any trade secrets to any Person, or transfer to any Person any rights to any Intellectual Property owned by the Company, other than licenses in the ordinary course of business consistent with past practices; (go) not make any material change in its accounting principles, methods or practices as they relate with respect to the manner in which Seller keeps its accounting books and records relating Business and/or any Transferred Asset, materially reduce the amount of any insurance coverage provided by existing insurance policies; (p) with respect to the BusinessBusiness and/or any Transferred Asset, except for commence a Legal Action (other than (i) any such change required by a change in GAAP or (ii) any change resulting from for the preparation or audit routine collection of the Business Financial Statements; (h) not grant to any Business Employee any increase in compensation or in severance or termination paybills, grant any severance or termination pay, or enter into any employment deferred compensation agreement or any similar agreement with any such employee, except as may be (i) required under Applicable Law, Seller’s termination policy (whether existing as of the date hereof or adopted hereafter) or any employment or termination agreement in effect on the date hereof or (ii) in such cases where it in good faith determines that failure to commence a Legal Action would result in the ordinary course material impairment of a valuable aspect of its business; andprovided that it consults with Purchaser prior to the filing of such Legal Action); (iq) not enter into with respect to the Business and/or any agreement to Transferred Asset, settle or compromise any pending or threatened Legal Action; (r) take any action that would violate is reasonably likely to make any of the representations or warranties of Seller contained in any material respect this Agreement untrue or incorrect or otherwise prevent Seller from performing, or cause Seller not to perform, its covenants hereunder; or (s) agree or commit to do any of the foregoing. Purchaser acknowledges and agrees that (i) nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct Seller or Seller's operation of the Business prior to the Closing, and (ii) prior to the Closing, Seller shall exercise, consistent with the terms of this Agreement, complete control over the Transferred Assets and the Business.

Operation of the Business Prior to Closing. Between the date of this Agreement and the Closing Date, except Except (i) as expressly contemplated in by this Agreement, any including the use of proceeds from the sale of the other Acquisition Documents Shares as contemplated by Section 3.11, (ii) as required by applicable Law or Data Security Requirements, (iii) as set forth in Schedule 5.14contemplated pursuant to the Loan Purchase Agreement, including the Loan Purchase and obtaining the financing with respect thereto, including the incurrence of indebtedness for purposes of financing such Loan Purchase, or unless Buyer shall otherwise agree (iv) as approved in writing advance by each Purchaser (which consent approval shall not be unreasonably withheld withheld, conditioned or delayed), Seller from the Effective Date through the Closing, the Company shall, and shall use commercially reasonable efforts cause its Subsidiaries to: (a) operate the Business , operate, in the ordinary course of business in all material respectsrespects and use commercially reasonable efforts to preserve intact in all material respects its current business organization, ongoing businesses and significant relationships with third parties. Except (1) as expressly contemplated by this Agreement, (2) as contemplated pursuant to the Loan Purchase Agreement, including the Loan Purchase and obtaining the financing with respect thereto, including the incurrence of indebtedness for purposes of financing such Loan Purchase, or (3) as required by applicable Law or Data Security Requirements, from the Effective Date through the Closing, the Company and its Subsidiaries, without the prior written consent of each Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), shall not: (a) declare, or make payment in respect of, any dividend or other distribution upon any shares of Common Stock or other capital stock or equity interest of the Company (other than with respect to the Series A Preferred Stock in accordance with the terms thereof); (b) maintain redeem, repurchase or acquire any shares of capital stock or other equity securities of the tangible assets that are Transferred Assets as a whole in all material respects in at least as good condition as they are being maintained on the date hereofCompany or any of its Subsidiaries, subject to normal wear and tear; (c) other than (i) not sellrepurchases of shares (A) approved by the Board of Directors and publicly announced prior to the Effective Date, assign(B) made in an “open market” transaction at the then-prevailing price or through an “accelerated share repurchase” on customary terms or (C) from employees, license officers or transfer directors of the Company or any of the Transferred Assets, except transfers of immaterial Transferred Assets, sales of Business Inventory its Subsidiaries in the ordinary course of business and licenses consistent with past practice pursuant to any of the Transferred Assets Company’s agreements or plans in effect as of the Effective Date and (ii) shares withheld on the vesting of employee stock awards; (c) authorize, issue or reclassify any capital stock, or securities exercisable for, exchangeable for or convertible into shares, of the Company or any of its Subsidiaries other than (i) the authorization and issuance of the Shares contemplated by this Agreement, (ii) issuance of shares of Common Stock pursuant to non-exclusive licenses the Equity Commitment Agreement in accordance with third parties the terms thereof, and (iii) issuances pursuant to any of the Company’s agreements or plans in effect as of the Effective Date of shares, or securities exercisable for, exchangeable for or convertible into shares, of the Company to (A) officers or directors of the Company or any of its Subsidiaries in the ordinary course of business and consistent with past practice or (iiB) not permit non-officer employees of the Company or any of the Transferred Assets to be subjected to any Lien, other than the Permitted Liensits Subsidiaries; (d) not fail to pay except for the Charter Amendment (after obtaining the Stockholder Approval at the Special Meeting), amend or discharge when due otherwise change, or waive any Liability provision of, the Certificate of which Incorporation or the failure to pay Bylaws or discharge would cause any material damage or loss to the Transferred Assetsorganizational document of any Subsidiary, taken including as a wholeresult of a merger, amalgamation, consolidation or other similar or extraordinary transaction; (e) not amend sell, assign, transfer, convey, lease or otherwise dispose of any material term assets or properties of the Company or terminate any material Transferred Contract, other than in the ordinary course of businessits Subsidiaries; (f) not initiate any Proceeding that relates exclusively to the Transferred Assets; (g) not make any material change in loans or advances of money to any Person (other than the Company and its accounting principles, methods or practices as they relate to the manner in which Seller keeps its accounting books and records relating to the BusinessSubsidiaries), except for (i) any such change required by a change in GAAP or loans made pursuant to the Incentive Plan, (ii) any change resulting from the preparation advances to employees or audit officers of the Business Financial StatementsCompany or any of its Subsidiaries for expenses incurred in the ordinary course of business consistent with past practice or (iii) trade credit extended to customers, franchisees and other business counterparties in the ordinary course of business consistent with past practice; (g) incur any Indebtedness, or Liens, including any obligations under financing type leases, or make any guarantees (other than with respect to the Loan Purchase); (h) not grant commit to or make any Business Employee any increase capital expenditure in compensation or in severance or termination pay, grant any severance or termination pay, or enter into any employment deferred compensation agreement or any similar agreement with any such employee, except as may be excess of $1,000,000 (i) required under Applicable Law, Seller’s termination policy (whether existing as of other than the date hereof or adopted hereafter) or any employment or termination agreement in effect on the date hereof or (ii) in the ordinary course of business; andcapital expenditures contemplated by Section 3.11); (i) not make any acquisition of stock or assets of any Person (other than with respect to the Loan Purchase), or merge or consolidate with any Person; or (j) authorize or enter into a contract or otherwise make any agreement commitment to take any action that would violate in any material respect do any of the foregoing.

Operation of the Business Prior to Closing. Between the date of this Agreement and the Closing Date, except as contemplated in this Agreement, any of the other Acquisition Documents or (a) Except as set forth in on Schedule 5.148.4, or unless Buyer shall otherwise agree in writing (which consent shall not be unreasonably withheld or delayed)prior to the Closing, Seller shall use commercially reasonable efforts toSeller: (ai) shall operate the Business in the usual, regular and ordinary course of business (except with the prior written consent of Purchaser); (ii) shall maintain the Purchased Assets in good operating condition and repair; (iii) shall pay its accounts payable and pay and perform its other obligations when they become due and payable in the ordinary course of business consistent with prior practice, or when required to be performed, as the case may be it being agreed that, with respect to the trade payables of the Business included in all material respects;the Assumed Operating Liabilities ("Payables"), Seller will, prior to Closing, pay the Payables so that none of the Payables as of the Closing Date will be older than 45 days. (iv) shall maintain the books, accounts and records of Seller in the usual, regular and ordinary manner on a basis consistent with past practice; and (v) shall use its reasonable commercial efforts to assist Purchaser and WGT in connection with Purchaser's financing for the transactions contemplated by this Agreement. (b) maintain Except as set forth on Schedule 8.4, prior to the tangible assets that are Transferred Assets as a whole Closing, Seller: (i) shall not make any material increase in all material respects in at least as good condition as they are being maintained on the date hereofsalary, subject benefits, bonuses or other compensation (whether commission, benefits (retirement, severance or other) or other direct or indirect remuneration) payable to normal wear and tearemployees of the Business; (cii) shall not enter into any employment contract with any employee of the Business; (iiii) shall not sell, assign, license transfer, convey, lease, pledge, encumber or transfer otherwise dispose of or agree to sell, assign, transfer, convey, lease, pledge, encumber or otherwise dispose of any of the Transferred AssetsPurchased Assets or other material rights, except transfers of immaterial Transferred Assets, sales of Business Inventory in the ordinary course of business and licenses of the Transferred Assets pursuant to non-exclusive licenses with third parties in the ordinary course of business and (ii) not permit any of the Transferred Assets to be subjected to any Lien, other than the Permitted Liens; (d) not fail to pay or discharge when due any Liability of which the failure to pay or discharge would cause any material damage or loss to the Transferred Assets, taken as a whole; (e) not amend any material term of or terminate any material Transferred Contract, other than in the ordinary course of business; (fiv) shall not initiate any Proceeding that relates exclusively to the Transferred Assets; (g) not make any material change in its accounting principles, methods transfer or practices as they relate to the manner in which Seller keeps its accounting books and records relating to the Business, except for (i) any such change required by a change in GAAP or (ii) any change resulting from the preparation or audit of the Business Financial Statements; (h) not grant to any Business Employee any increase in compensation or in severance or termination pay, grant any severance or termination payright under, or enter into any employment deferred compensation agreement settlement regarding the breach or infringement of, any similar agreement Sierra Intellectual Property, or modify any existing right with respect thereto; (v) shall not enter into any such employee, except as may be (i) required under Applicable Law, Seller’s termination policy (whether existing as of the date hereof or adopted hereafter) or any employment or termination agreement in effect on the date hereof or (ii) Contract other than in the ordinary course of businessbusiness or enter into any material amendment, supplement or waiver in respect of any Assumed Contract or enter into any amendment, supplement or waiver with respect to any existing such Assumed Contract; (vi) shall not agree to incur any severance payment, "stay bonus", "sale bonus" or similar obligation by reason of this Agreement to any employee of the Business except for payments for cancellation of outstanding stock options of Seller or its Affiliates. (vii) shall not grant or extend any power of attorney relating to the Business; (viii) shall not make any commitment for capital expenditures or capital additions or improvements relating to the Business under which payment or expenditure obligations exceeding $25,000 in the aggregate will remain outstanding as of the Closing Date; (ix) shall not enter into or amend any collective bargaining or union contract or agreement covering any employees of the Business; (x) shall not institute, settle or agree to settle any Proceeding before any arbitrator, tribunal, court or other Governmental Authority that creates or imposes any continuing obligation or restriction on the Business; (xi) shall not in any other manner, modify, change or otherwise alter the fundamental nature of the Business as presently conducted; (xii) shall not make or permit any change to its accounting methods or principles; and (ixiii) shall not enter into otherwise commit, whether in writing or otherwise, to do, or take any agreement action or omit to take any action that would violate in any material respect result in, any of the foregoing.