Common use of Ordinary Conduct of the Business Clause in Contracts

Ordinary Conduct of the Business. Except as expressly contemplated by the terms of this Agreement, from the date hereof to the Closing, such Seller will cause the portion of the Business owned by such Seller or any Subsidiary of such Seller to be conducted in the ordinary and usual course and use reasonable best efforts to preserve the properties, business and relationships of the Business with suppliers and customers of the Business. Except as provided in this Agreement and without limiting the foregoing, such Seller shall not, and shall not permit any Subsidiary of such Seller to, without the prior written consent of Buyer: (a) sell, assign or otherwise transfer or dispose of or abandon any of the assets used in the Business or the Xxxxx Xxxx Business that, but for any disposition, would constitute Assets or Xxxxx Xxxx Assets (except for sales of finished goods inventory), or any assets that, but for any disposition, would constitute Windmill Intellectual Property; (b) pledge or grant any security interest in any of the Assets or Xxxxx Xxxx Assets, or any of the Windmill Intellectual Property, in connection with the borrowing of money or for the deferred purchase of any property, or otherwise permit the imposition of a Lien on any of the Assets or Xxxxx Xxxx Assets, or any of the Windmill Intellectual Property, other than Permitted Liens; (c) make any material changes in any coupon programs, trade promotion activities, discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities related to the Business, institute any new coupon programs, trade promotion activities or discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities pertaining to the Business, or otherwise make any material change in the selling, pricing, advertising or promotional practices of the Business, in each case, inconsistent with prior practice; (d) make any material change in its practices with respect to the manner and timing of payment of trade payables relating to the Business; (e) make any material change in its practices with respect to the collection of receivables relating to the Business; (f) enter into any contracts or agreements relating to the Business except in the ordinary course of business consistent with past practice or any lease of any real property applicable to the Business; terminate or materially amend any Contract; or enter into any agreement or arrangement relating to the Business, other than with respect to the Excluded Assets, with any Affiliate of such Seller; (g) except as disclosed in SCHEDULE 3.9, increase in any manner the compensation, bonuses or benefits payable or to become payable by such Seller to any of the Business Employees other than in the ordinary course of business consistent with past practice or enter into any employment or severance agreement with or grant any severance or termination pay to any Business Employee other than in accordance with existing policies; (h) enter into agreements or arrangements for purchases of Inventory not in the ordinary course or materially inconsistent with Seller's past practices; (i) make any material change in its accounting methods or principles applicable to the Business, except as required by GAAP or applicable law; (j) make any material changes in any, or institute any new, coupon programs or trade promotion activities related to the Xxxxx Xxxx Business; (k) make any new (or change any current) Tax election that is specific and unique to Windmill with respect to Taxes affecting Windmill (PROVIDED that nothing in this Section 5.2(k) shall prevent Sellers from making (or changing) any Tax election generally applicable to members of a consolidated, combined or unitary group of which Windmill is a member); or (l) agree or commit to do any of the foregoing.

Ordinary Conduct of the Business. Except as expressly contemplated by the terms of this Agreement or the Conversion Plan Agreement, from the date hereof of the Original Asset Purchase Agreement to the Closing, or the Toledo Plant Closing, as applicable, such Seller will cause the portion of the Business owned by such Seller or any Subsidiary of such Seller to be conducted in the ordinary and usual course and use reasonable best efforts to preserve the properties, business and relationships of the Business (including the Toledo Plant) with suppliers and customers of the BusinessBusiness (including the Toledo Plant). Except as provided in this Agreement or the Conversion Plan Agreement and without limiting the foregoing, such Seller shall not, and shall not permit any Subsidiary of such Seller to, without the prior written consent of Buyer: (a) sell, assign or otherwise transfer or dispose of or abandon any of the assets used in the Business or the Xxxxx Xxxx each Other Business that, but for any disposition, would constitute Assets or Xxxxx Xxxx Other Assets (except for sales of finished goods inventory), or any assets that, but for any disposition, would constitute Windmill Intellectual Property, or, through the Toledo Plant Closing Date, any assets that, but for any disposition, would constitute the Toledo Plant or any portion thereof; (b) (i) pledge or grant any security interest in any of the Assets or Xxxxx Xxxx Other Assets, or any of the Windmill Intellectual Property, in connection with the borrowing of money or for the deferred purchase of any property, or otherwise permit the imposition of a Lien on any of the Assets or Xxxxx Xxxx Other Assets, or any of the Windmill Intellectual Property, other than Permitted LiensLiens and (ii) through the Toledo Plant Closing Date, pledge or grant any security interest in any of the Toledo Plant, in connection with the borrowing of money or for the deferred purchase of any property, or otherwise permit the imposition of a Lien on any of the Toledo Plant, other than Permitted Liens and other than Liens which will be removed prior to the Toledo Plant Closing; (c) make any material changes in any coupon programs, trade promotion activities, discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities related to the Business, institute any new coupon programs, trade promotion activities or discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities pertaining to the Business, or otherwise make any material change in the selling, pricing, advertising or promotional practices of the Business, in each case, inconsistent with prior practice; (d) make any material change in its practices with respect to the manner and timing of payment of trade payables relating to the Business; (e) make any material change in its practices with respect to the collection of receivables relating to the Business; (f) (i) enter into any contracts or agreements relating to the Business except in the ordinary course of business consistent with past practice or any lease of any real property applicable to the Business; terminate or materially amend any Contract; or enter into any agreement or arrangement relating to the Business, other than with respect to the Excluded Assets, with any Affiliate of such Seller; and (ii) through the Toledo Plant Closing Date, enter -48- into any contracts or agreements relating to the Toledo Plant, except in the ordinary course of business consistent with past practice (and provided that any such contracts or agreements entered into after the date hereof relating to the Toledo Plant shall be terminable by Sellers or their Affiliates without penalty upon thirty (30) days' prior notice), or any lease of any real property applicable to the Toledo Plant; terminate or materially amend any Toledo Plant Assigned Contract; or enter into any agreement or arrangement relating to the Toledo Plant, other than with respect to the Excluded Assets or Excluded Toledo Assets, with any Affiliate of such Seller; (g) except as disclosed in SCHEDULE 3.9, increase in any manner the compensation, bonuses or benefits payable or to become payable by such Seller to any of the Business Employees other than in the ordinary course of business consistent with past practice or enter into any employment or severance agreement with or grant any severance or termination pay to any Business Employee other than in accordance with existing policies; (h) enter into agreements or arrangements for purchases of Inventory not in the ordinary course or materially inconsistent with Seller's past practices; (i) make any material change in its accounting methods or principles applicable to the Business, except as required by GAAP or applicable lawLaw; (j) make any material changes in any, or institute any new, coupon programs or trade promotion activities related to the Xxxxx Xxxx any Other Business; (k) make any new (or change any current) Tax election that is specific and unique to Windmill with respect to Taxes affecting Windmill (PROVIDED that nothing in this Section 5.2(k) shall prevent Sellers from making (or changing) any Tax election generally applicable to members of a consolidated, combined or unitary group of which Windmill is a member); or; (l) agree or commit to do any of the foregoing; or (m) subject to the provisions of Section 11.2 below, fail to maintain or repair the Toledo Plant or fail to replace any equipment or other components of the Toledo Plant, in each case in accordance with Sellers' past practices (except to the extent the Conversion Plan requires otherwise).

Ordinary Conduct of the Business. Except as expressly contemplated permitted by the terms of this AgreementAgreement or as may be necessary to comply with Applicable Law, from the date hereof to the Closing, such Seller and its Affiliates will cause the portion of use their commercially reasonable efforts to conduct the Business owned by such Seller or any Subsidiary of such Seller to be conducted in the ordinary course consistent with past practice and usual course the historical growth of the Business, including the filing, maintenance and prosecution of Intellectual Property registrations and applications, and will not take any action inconsistent with this Agreement or with the consummation of the Closing. Seller and its Affiliates shall use their commercially reasonable best efforts consistent with past practice to preserve intact the Business and the Included Assets and to maintain relationships with third Persons to preserve the properties, business and relationships goodwill of the Business with suppliers Business, including, without limitation, suppliers, distributors, brokers, co-manufacturers, customers and customers employees of the Business. Except From the date hereof to the Closing, Seller shall give Buyer prompt written notice (and in any case within three (3) Business Days) if Seller or any of its Affiliates receives any written communication from any customer, distributor, supplier, broker or co-manufacturer named or required to be named on Schedule 3.7 of any intention to terminate or materially reduce purchases of Products from, sales of supplies to or the brokerage or co-manufacturer relationship with Seller, its Affiliates or the Business. Without limiting the generality of the foregoing, except as provided in this Agreement and without limiting the foregoingor as may be necessary to comply with Applicable Law (provided Seller promptly notifies Buyer in writing of any such action taken or not taken due to a requirement of Applicable Law), such Seller shall not, and shall cause its Affiliates not permit any Subsidiary of such Seller to, without the prior written consent of Buyer:Buyer (not to be unreasonably withheld): (a) sellSell, assign assign, transfer, convey, lease or otherwise transfer or dispose of or abandon any of the assets used in the Business Transferred Facilities, facilities subject to a material Transferred Lease or the Xxxxx Xxxx Business that, but for any disposition, would constitute Assets or Xxxxx Xxxx Assets (except for sales of finished goods inventory), or any assets that, but for any disposition, would constitute Windmill Intellectual Property; (b) pledge or grant any security interest in any of the Assets or Xxxxx Xxxx material Included Assets, or any of the Windmill Intellectual Property, in connection with the borrowing of money or for the deferred purchase of any property, or otherwise permit the imposition of a Lien on any of the Assets or Xxxxx Xxxx Assets, or any of the Windmill Intellectual Property, other than Permitted Liens; (c) make any material changes in any coupon programs, trade promotion activities, discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities related to the Business, institute any new coupon programs, trade promotion activities or discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities pertaining to the Business, or otherwise make any material change in the selling, pricing, advertising or promotional practices of the Business, in each case, inconsistent with prior practice; (d) make any material change in its practices with respect to the manner and timing of payment of trade payables relating to the Business; (e) make any material change in its practices with respect to the collection of receivables relating to the Business; (f) enter into any contracts or agreements relating to the Business except in the ordinary course of business consistent with past practice or the disposition of obsolete or inoperable Included Assets; in addition, to the extent that any lease such Included Assets constitute Transferred Intellectual Property, abandon, permit to lapse, or in the case of Transferred Patents, not file in a timely manner in a jurisdiction where Seller or its Affiliates are conducting the Business any application or in the case of the Transferred Patents filing; however, nothing in this Section 5.2(a) will require Seller or its Affiliates to make an application, registration, or other filing regarding Transferred Patents in jurisdictions where Seller and its Affiliates are not conducting the Business as of the Closing Date; (b) Mortgage, pledge, or encumber any material portion of the Included Assets, the Transferred Facilities or facilities leased pursuant to the Transferred Leases, other than to Permitted Liens; (c) Except (i) to the extent required by any Seller Plan or other binding agreement as they exist on the date hereof, (ii) as effected in the ordinary course of business consistent with past practice, (iii) as would relate to substantially all other similarly situated employees of Seller or its Affiliates who participate in the applicable Seller Plan (including those outside of the Business) and would not result in a material increase in benefits to such employees or (iv) as set forth on Schedule 5.2(c) for which Seller or its Affiliates shall be solely liable, materially increase the compensation or benefits of any real property applicable to current employee of the Business; terminate Business (including, without limitation, under any bonus, severance, termination pay or materially amend retention arrangement and including any Contract; increase that would affect such employee following termination of employment), or adopt, enter into or amend in any material respect any Seller Plan, agreement (including, without limitation, any employment agreement), trust, fund or other arrangement relating to for the benefit or welfare of any current employee of the Business, other than with respect to the Excluded Assets, with or pay any Affiliate of material benefit not required by any such Sellerexisting Seller Plan or arrangement; (gd) except Except as disclosed set forth in SCHEDULE 3.9, increase in any manner the compensation, bonuses or benefits payable or to become payable by such Seller to any of the Business Employees Schedule 5.2(d)(i) and other than in the ordinary course of business consistent with past practice and the historical growth of the Business, enter into, renew, amend in any material respect or terminate any Transferred Contract listed on Schedule 3.6(a) (or that would be required to be listed on or required to be listed on Schedule 3.6(a) had such Contract been entered into prior to the date hereof) or any Included Shared Contract; provided, that Buyer’s consent (which may be withheld in its sole discretion) shall be required for (i) any amendment to, or termination of or other modification of the Contract listed on Schedule 5.2(d)(ii), (ii) any entry into, amendment to, or other modification of, any co-manufacturing agreement which creates a volume commitment for a period of greater than one year, (iii) any renewal of, amendment to, or other modification of, any Transferred Contract with a broker or distributor of the Business in effect on the date of this Agreement, which provides the broker or distributor exclusivity rights for a longer period than in the Transferred Contract prior to its renewal and (iv) any entry into any new Transferred Contract with a broker or distributor of the Business, which provides the broker or distributor exclusivity rights for a period of greater than two (2) years, and so long as that, with respect to clauses (iii) and (iv), (A) no such Transferred Contract shall include an exclusivity provision that relates to businesses other than the Business, (B) prior to entering into such Transferred Contract, Seller shall provide Buyer or its Affiliates with a right of first refusal to enter into any employment or severance agreement with or grant any severance or termination pay such Contract at market price and (C) Seller shall use commercially reasonable efforts to any Business Employee other than in accordance with existing policies; (h) enter into agreements or arrangements for purchases minimize the length of Inventory not in the ordinary course or materially inconsistent with Seller's past practicessuch exclusivity provisions; (i) make any change in the key management structure for the Business (which, for the avoidance of doubt, shall mean the President of Pizza, Kraft North America, and his or her direct reports), (ii) make any material change in its accounting methods the key research and development personnel for the Business (which, for the avoidance of doubt, shall mean the Senior Director Research, Development, & Quality of Pizza, Kraft North America, and his or principles applicable her direct reports), (iii) make any change in the direct reports to the Persons included in clauses (i) and (ii), or (iv) make any change in the customer business team exclusively devoted to the Business, except as other than (A) to replace employees who terminate employment due to death, disability, voluntary resignation or for cause, (B) to retain those employees listed on Schedule 6.1(b) and (C) to reassign the executive identified on Schedule 5.2(e) to another business of Seller or its Affiliates in accordance with Schedule 5.2(e); (f) Waive any claim or right of material value that relates to the Business; (g) Make any material change in any method of accounting or accounting practice or policy applicable to the Business other than those required by GAAP or applicable lawApplicable Law, or required by Seller as part of a change in Seller’s accounting practice or policy that impacts businesses of Seller (including the Business) generally; (i) Fail in any material respect to pay the accounts payable and debts owed or obligations due with respect to the Business, or pay or discharge when due any Liabilities with respect to the Business in the ordinary course of business; or (ii) fail in any material respect to collect its accounts receivable with respect to the Business in the ordinary course of business; (i) Enter into any agreement without Buyer’s prior written consent (i) licensing or disposing of any Transferred Intellectual Property to any Person, other than to an Affiliate of Seller, except for Non-Material Licenses-Out, or (ii) licensing or disposing of any Licensed Intellectual Property in a manner that would adversely affect the licenses to be granted to Buyer and its Affiliates pursuant to the Collateral Agreements; (j) make Make, change or revoke any material changes Tax election; change an annual accounting period; adopt or change any accounting method with respect to Taxes; file any amended Tax Return; enter into any closing agreement; settle or compromise any Tax claim or assessment; or consent to any extension or waiver of the limitation period applicable to any claim or assessment with respect to Taxes; in any, or institute any new, coupon programs or trade promotion activities related each case to the Xxxxx Xxxx Business;extent such action relates to the Included Assets or the Business and it is reasonably foreseeable that such action would materially increase Taxes with respect to the Included Assets or the Business in a Post-Closing Tax Period; or (k) make any new (Agree, whether in writing or change any current) Tax election that is specific and unique to Windmill with respect to Taxes affecting Windmill (PROVIDED that nothing in this Section 5.2(k) shall prevent Sellers from making (or changing) any Tax election generally applicable to members of a consolidatedotherwise, combined or unitary group of which Windmill is a member); or (l) agree or commit to do any of the foregoing.

Ordinary Conduct of the Business. Except as expressly contemplated permitted by the terms of this Agreement, from the date hereof to the Closing, such Seller and its Affiliates will cause the portion of use their commercially reasonable efforts to conduct the Business owned by such Seller or any Subsidiary of such Seller to be conducted in the ordinary course consistent with past practice, and usual course will not take any action inconsistent with this Agreement or with the consummation of the Closing. Seller and its Affiliates shall use their commercially reasonable best efforts to preserve intact the properties, business Business and the Acquired Assets and to maintain relationships with third Persons to preserve the goodwill of the Business with suppliers Business, including suppliers, distributors, brokers, co-manufacturers, customers and customers employees of the Business. Except Without limiting the generality of the foregoing, except as provided in this Agreement and without limiting the foregoingAgreement, such Seller shall not, and shall cause its Affiliates not permit any Subsidiary of such Seller to, without the prior written consent of Buyer: (a) make any change in the key management structure of the Business; (b) sell, assign assign, transfer, convey, lease (other than any amendment or restatement of the BFA Lease) or otherwise transfer or dispose of or abandon any of the assets used in the Business Facilities or the Xxxxx Xxxx Business thatmaterial Acquired Assets, but for any disposition, would constitute Assets or Xxxxx Xxxx Assets (except for sales the sale of finished goods inventory), or any assets that, but for any disposition, would constitute Windmill Intellectual Property; (b) pledge or grant any security interest in any of the Assets or Xxxxx Xxxx Assets, or any of the Windmill Intellectual Property, in connection with the borrowing of money or for the deferred purchase of any property, or otherwise permit the imposition of a Lien on any of the Assets or Xxxxx Xxxx Assets, or any of the Windmill Intellectual Property, other than Permitted Liens; (c) make any material changes in any coupon programs, trade promotion activities, discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities related to the Business, institute any new coupon programs, trade promotion activities or discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities pertaining to the Business, or otherwise make any material change in the selling, pricing, advertising or promotional practices of the Business, in each case, inconsistent with prior practice; (d) make any material change in its practices with respect to the manner and timing of payment of trade payables relating to the Business; (e) make any material change in its practices with respect to the collection of receivables relating to the Business; (f) enter into any contracts or agreements relating to the Business except inventory in the ordinary course of business consistent with past practice or the disposition of obsolete or inoperable assets; (c) abandon or permit to lapse, or fail to make any lease required payments or filings in a timely manner for, any Transferred Intellectual Property; (d) mortgage, pledge, or encumber any material portion of any real property applicable to the Business; terminate Acquired Assets or materially amend any Contract; or enter into any agreement or arrangement relating to the BusinessFacilities, other than (i) any such mortgage, pledge or encumbrance that constitutes a Permitted Lien or (ii) any mortgage, deed of trust or other encumbrance with respect to the Excluded Portland Site in connection with Seller obtaining the Refinanced Portland Real Estate Indebtedness; provided, that, any such mortgage, deed of trust or other encumbrance with respect to such Refinanced Portland Real Estate Indebtedness does not encumber assets that were not encumbered pursuant to the Portland Real Estate Indebtedness as in effect on the date of this Agreement (except to the extent that any such encumbrances are on assets that are not Acquired Assets); (e) except as may be required by Law, with or by a Seller Plan as in effect on the date hereof, (i) issue, grant, create or materially increase any Affiliate form of such Sellercompensation or benefits of any current or former Business Employee (including under any bonus, severance, termination pay or retention arrangement), (ii) adopt, enter into or amend in any material respect any Seller Plan, agreement (including any employment or severance agreement), trust, fund or other arrangement for the benefit of any current or former Business Employee, or (iii) pay any benefit not required to be paid by any existing Seller Plan; (f) terminate the employment of any Key Employee (other than for cause); (g) except recognize any union or other labor organization as disclosed in SCHEDULE 3.9the representative of any Business Employees, increase in or enter into any manner the compensationnew, bonuses or benefits payable materially amend any existing, collective bargaining or to become payable by such Seller to works council agreement with any labor organization, works council or other representative of any of the Business Employees Employees; (h) other than in the ordinary course of business consistent with past practice business, enter into, amend in any material respect or enter terminate any Contract listed or required to be listed on Schedule 3.6(a) (or that would be required to be listed on Schedule 3.6(a) had such Contract been entered into any employment or severance agreement with or grant any severance or termination pay prior to any Business Employee other than in accordance with existing policies; (h) enter into agreements or arrangements for purchases of Inventory not in the ordinary course or materially inconsistent with Seller's past practicesdate hereof); (i) make cancel any material change in its accounting methods debt or principles applicable claim or amend, terminate or waive any rights that relates to the Business, except as required by GAAP Business or applicable lawconstitutes an Acquired Asset; (j) make incur or assume of any material changes Liabilities or indebtedness for borrowed money of the Business or guarantee of any such Liabilities or indebtedness (other than any guarantee given in anyconnection with the Refinanced Portland Real Estate Indebtedness; provided, or institute that, such guarantee does not encumber any new, coupon programs or trade promotion activities related to the Xxxxx Xxxx BusinessAcquired Asset); (k) make any new change in any method of accounting or accounting practice or policy applicable to the Business other than those required by GAAP; (l) materially change or modify the cash management practices and policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts receivable, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits; (m) (A) fail in any material respect to pay the accounts payable and debts owed or obligations due with respect to the Business, or pay or discharge when due any Liabilities with respect to the Business in the ordinary course of business; or (B) fail in any material respect to collect its accounts receivable with respect to the Business in the ordinary course of business; (n) enter into any agreement licensing, sub-licensing or disposing of any Transferred Intellectual Property or Seller’s rights to any Third-Party Intellectual Property to any Person; (o) make, change or revoke any Tax election; change an annual accounting period; adopt or change any current) Tax election that is specific and unique to Windmill accounting method with respect to Taxes affecting Windmill (PROVIDED that nothing in this Section 5.2(k) shall prevent Sellers from making (Taxes; file any amended Tax Return; enter into any closing agreement; settle or changing) compromise any Tax election generally claim or assessment; or consent to any extension or waiver of the limitation period applicable to members of any claim or assessment with respect to Taxes; in each case to the extent such action could adversely affect the Acquired Assets or the Business in a consolidated, combined Tax period or unitary group of which Windmill is a member)portion thereof beginning after the Closing Date; or (lp) agree agree, whether in writing or commit otherwise, to do any of the foregoing.

Ordinary Conduct of the Business. Except as expressly contemplated permitted by the terms of this Agreement, from the date hereof to the Closing, such Seller SELLER will cause the portion of the Business owned by such Seller or any Subsidiary of such Seller to be conducted in all material respects in the ordinary course consistent with past practice and usual course and shall use its commercially reasonable best efforts to preserve intact in all material respects the properties, business Business and relationships with third parties and employees of the Business with suppliers and customers the goodwill of the Business. Except Without limiting the generality of the foregoing, except as provided in this Agreement and without limiting the foregoingAgreement, such Seller SELLER shall not, and shall not permit any Subsidiary of such Seller to, without the prior written consent of Buyer:BUYER (not to be unreasonably withheld): (a) sellSell, assign lease, license or otherwise transfer or dispose of or abandon any of the assets used in the Business or the Xxxxx Xxxx Business thatAssets, but for any disposition, would constitute Assets or Xxxxx Xxxx Assets (except for sales of finished goods inventory), or any assets that, but for any disposition, would constitute Windmill Intellectual Property;inventory in the ordinary course of business consistent with past practice. (b) Mortgage, pledge or grant any security interest in any of the Assets or Xxxxx Xxxx Assets, or any of the Windmill Intellectual Property, in connection with the borrowing of money or for the deferred purchase of any property, or otherwise permit the imposition of a or suffer to exist any Lien on any of the Assets or Xxxxx Xxxx Assets, or any of the Windmill Intellectual Property, other than Permitted Liens;. (c) make any material changes in any coupon programsExcept (i) as may be required by applicable law or by a binding agreement existing on the date hereof and disclosed on Schedule 3.12(a), trade promotion activities, discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities related to the Business, institute any new coupon programs, trade promotion activities or discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities pertaining to the Business, or otherwise make any material change in the selling, pricing, advertising or promotional practices of the Business, in each case, inconsistent with prior practice; (dii) make any material change in its practices with respect to the manner and timing of payment of trade payables relating to the Business; (e) make any material change in its practices with respect to the collection of receivables relating to the Business; (f) enter into any contracts or agreements relating to the Business except for normal recurring salary increases in the ordinary course of business consistent with past practice practice, or (iii) for any lease action taken with respect to a Plan that applies uniformly to both Business Employees and similarly situated other employees of SELLER and its affiliates, increase the compensation or benefits of any real property applicable employee of the Business (other than the payment of, or promise to pay, stay or similar bonuses that are the sole responsibility of SELLER and as disclosed in writing to BUYER prior to the Business; terminate Closing) or materially otherwise enter into or amend any Contract; Plans, including any employment, severance, consulting, termination or other agreement with a Business Employee. (d) Enter into, modify in any material respect, amend in any material respect or terminate any material Contract or waive, release or assign any material rights thereunder, or otherwise enter into any agreement contract or arrangement transaction relating to the Business, other than with respect to purchase of assets for use in the Excluded Assets, with any Affiliate Business in excess of such Seller;$500,000 individually. (ge) except as disclosed in SCHEDULE 3.9, increase in any manner the compensation, bonuses or benefits payable or to become payable by such Seller to any of the Business Employees other than in the ordinary course of business consistent with past practice or enter Enter into any employment or severance agreement with or grant Contract containing any severance or termination pay to any Business Employee other than in accordance with existing policies; (h) enter into agreements or arrangements for purchases of Inventory not in the ordinary course or materially inconsistent with Seller's past practices; provision that (i) make limits SELLER’s ability (or the ability of any material change subsidiary of SELLER) to create, incur, assume or suffer to exist any Liens on its property (other than (A) any customary non-assignment provision of any contract or lease governing a leasehold or ownership interest of SELLER or any subsidiary of SELLER and (B) any such provision in its accounting methods or principles applicable favor of any holder of a Capitalized Lease Obligation solely to the Businessextent such provision relates to the property subject to such Capitalized Lease Obligation), except as required by GAAP (ii) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person or applicable law;(iii) limits the ability of any subsidiary of SELLER to pay dividends, make loans or advances to SELLER and its affiliates or transfer assets to SELLER and its affiliates. (jf) make Enter into any material changes in anyagreement, contract, commitment or institute arrangement to do anything described above that it is prohibited from doing. Without limiting the foregoing, SELLER shall consult with BUYER regarding renewal, extension, amendment or modification of any newContract set forth on Schedule 3.5(a) or 3.5(b), coupon programs or trade promotion activities related to the Xxxxx Xxxx Business; (k) make any new (or change any current) Tax election that is specific and unique to Windmill with respect to Taxes affecting Windmill (PROVIDED that nothing in this Section 5.2(k) shall prevent Sellers from making (or changing) any Tax election generally applicable to members of a consolidated, combined or unitary group term of which Windmill is would otherwise expire within six (6) months of the Closing Date and, at the written request of BUYER, shall reasonably cooperate with BUYER and take commercially reasonable steps to seek to extend or amend the Contracts listed on Schedule 5.2 so that such contracts will continue for a member); or term of at least six (l6) agree months following the Closing Date on terms substantially the same or commit to do no worse than the terms currently in effect, it being understood that BUYER shall be solely responsible for any costs incurred in connection with SELLER taking any of the foregoingsuch commercially reasonable steps.

Ordinary Conduct of the Business. Except as expressly contemplated permitted by the terms of this Agreement, from the date hereof to the Closing, such Seller SELLER will cause the portion of the Business owned by such Seller or any Subsidiary of such Seller to be conducted in the ordinary and usual course and use reasonable best efforts to preserve the properties, business and relationships of the Business consistent with suppliers and customers of the Businesspast practice. Except as provided in this Agreement and without limiting the foregoingAgreement, such Seller SELLER shall not, and shall not permit any Subsidiary of such Seller to, without the prior written consent of BuyerBUYER: (a) sell, assign sell or otherwise transfer or dispose of or abandon any of the assets used in the Business or the Xxxxx Xxxx Business thatAssets, but for any dispositionother than de minimis sales, would constitute Assets or Xxxxx Xxxx Assets (except for sales of finished goods inventory), or any assets that, but for any disposition, would constitute Windmill Intellectual Propertydispositions and abandonments; (b) mortgage, lease, license, pledge or grant any security interest in any of the Assets or Xxxxx Xxxx Assets, or any of the Windmill Intellectual Property, in connection with the borrowing of money or for the deferred purchase of any property, ; or otherwise permit the imposition of a Lien lien on any of the Assets or Xxxxx Xxxx Assets, or any of the Windmill Intellectual Property, other than Permitted Liens; (c) make modify, amend or terminate any of the Contracts or waive, release or assign any material changes in any coupon programs, trade promotion activities, discount, rebate, incentive, volume guaranty, non-employee performance policies rights or programs or similar programs, policies or activities related claims with respect to the Business, institute any new coupon programs, trade promotion activities or discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities pertaining to the Business, or otherwise make any material change except in the selling, pricing, advertising or promotional practices ordinary course of the Business, in each case, inconsistent business and consistent with prior past practice; (d) take, or agree to or commit to take, any action that would or is reasonably likely to result in any of the conditions to the Closing set forth in Article II not being satisfied, or would make any material change representation or warranty of SELLER contained herein inaccurate in its practices any respect (subject to any applicable materiality qualifier) at, or as of any time prior to, the Closing Date, or that would materially impair the ability of SELLER or BUYER to consummate the Closing in accordance with respect to the manner and timing of payment of trade payables relating to the Businessterms hereof or materially delay such consummation; (e) make engage in any material change in its practices transaction with respect to the collection Business other than in the ordinary course of receivables relating to the Businessbusiness; (f) enter into any contracts contract or agreements transaction relating to the Business except in the ordinary course of business consistent with past practice or any lease of any real property applicable to the Business; terminate or materially amend any Contract; or enter into any agreement or arrangement relating to the Business, other than with respect to the Excluded Assets, with any Affiliate of such Seller; (g) except as disclosed in SCHEDULE 3.9, increase in any manner the compensation, bonuses or benefits payable or to become payable by such Seller to any purchase of the Business Employees Assets other than in the ordinary course of business consistent with past practice practice; (g) fail to file, on a timely basis, with appropriate taxing authorities all Tax Returns required to be filed prior to the Closing Date with respect to, or enter into any employment or severance agreement with or grant any severance or termination pay to any Business Employee other than in accordance with existing policieson behalf of, operations of the Business; (h) enter into agreements or arrangements for purchases of Inventory not permit any insurance policy identified in the ordinary course or materially inconsistent with Seller's past practicesDisclosure Schedule to be cancelled; (i) make any material change in its accounting methods express or principles applicable deemed election for Tax purposes or any offer to the Business, except as required by GAAP settle or applicable law;compromise or any settlement or compromise of any liability with respect to Taxes; or (j) make enter into any material changes in anyagreement, contract, commitment or institute any new, coupon programs or trade promotion activities related to the Xxxxx Xxxx Business; (k) make any new (or change any current) Tax election that is specific and unique to Windmill with respect to Taxes affecting Windmill (PROVIDED that nothing in this Section 5.2(k) shall prevent Sellers from making (or changing) any Tax election generally applicable to members of a consolidated, combined or unitary group of which Windmill is a member); or (l) agree or commit arrangement to do any of the foregoing, or authorize, recommend, propose or announce an intention to do, any of the foregoing.

Ordinary Conduct of the Business. Except as expressly contemplated permitted by the terms of this Agreement, from the date hereof to the Closing, such Seller SELLER will cause the portion of the Business owned by such Seller or any Subsidiary of such Seller to be conducted in the ordinary and usual course and use reasonable best efforts to preserve the properties, business and relationships of the Business consistent with suppliers and customers of the Businesspast practice. Except as provided in this Agreement and without Without limiting the foregoing, such Seller except as expressly provided in this Agreement, SELLER shall not, and shall not permit any Subsidiary of such Seller to, without the prior written consent of BuyerBUYER: (a) sell, assign Sell or otherwise transfer or dispose of or abandon any of the assets used in the Business or the Xxxxx Xxxx Business that, but for any disposition, would constitute Assets or Xxxxx Xxxx Assets (except for sales of finished goods inventory)Inventory in the ordinary course of the Business and consistent with past practice and except for sales or dispositions of equipment, supplies and fixed assets having a fair market value not in excess of $10,000 individually or any assets that, but for any disposition, would constitute Windmill Intellectual Property$100,000 in the aggregate that do not materially affect the conduct of or ability to conduct the Business; (b) Amend or terminate any Contract or take any other action that would permit the termination thereof or the loss of benefits to the Business therefrom, except in the ordinary course of the Business consistent with past practice, and subject to the approval of BUYER, which approval shall not be unreasonably withheld or delayed; (c) Mortgage, pledge or grant any security interest in any of the Assets or Xxxxx Xxxx Assets, or any of the Windmill Intellectual Property, in connection with the borrowing of money or for the deferred purchase of any property, ; or otherwise permit the imposition of a Lien lien on any of the Assets or Xxxxx Xxxx Assets, or any of the Windmill Intellectual Property, other than Permitted Liens; (c) make any material changes in any coupon programs, trade promotion activities, discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities related to the Business, institute any new coupon programs, trade promotion activities or discount, rebate, incentive, volume guaranty, non-employee performance policies or programs or similar programs, policies or activities pertaining to the Business, or otherwise make any material change in the selling, pricing, advertising or promotional practices of the Business, in each case, inconsistent with prior practice; (d) make Make any material written change in its practices with respect to the manner terms upon which the Business extends credit to customers, discounts prices or offers other terms or sales incentives or coupons or free-standing inserts other than changes occurring in the ordinary course of the Business consistent with past practice, and subject to the approval of BUYER, which approval shall not be unreasonably withheld or delayed; (e) Terminate or modify any governmental license, permit or other authorization relating to the Business, other than in the ordinary course of the Business consistent with past practice; (f) Engage in any promotional sale or discount or other activity with customers that is not consistent in nature and timing with past practices as contemplated in the promotional activity calendar for the Products set forth as SCHEDULE 5.2 hereto, which has or would reasonably be expected to have the effect of payment of trade payables changing the period in which sales would otherwise be expected to occur; (g) Enter into or become subject to any new material contract, agreement or commitment relating to the Business; (eh) make Take steps to limit any material change claim in its practices with respect any pending application listed on SCHEDULE 1.4(f), or reissue, reexamine, abandon or fail to the collection of receivables relating to the Business; (fmaintain any patent listed on SCHEDULE 1.4(f) enter into or disclaim any contracts or agreements relating to the Business except in the ordinary course of business consistent with past practice or any lease claim of any real property applicable to the Business; terminate patent or materially amend any Contract; or enter into any agreement or arrangement relating to the Business, other than with respect to the Excluded Assets, with any Affiliate of such Seller; (g) except as disclosed in application listed on SCHEDULE 3.9, increase in any manner the compensation, bonuses or benefits payable or to become payable by such Seller to any of the Business Employees other than in the ordinary course of business consistent with past practice or enter into any employment or severance agreement with or grant any severance or termination pay to any Business Employee other than in accordance with existing policies; (h) enter into agreements or arrangements for purchases of Inventory not in the ordinary course or materially inconsistent with Seller's past practices1.4(f); (i) make enter into any material change new or amended agreement with any third party manufacturer for the manufacture of Products, or with SELLER'S container supplier for any supply agreement inconsistent with SELLER'S present arrangement with such supplier, it being understood that BUYER will have the opportunity to participate in any negotiations, and the right to approve contracts, between SELLER and such third party manufacturers or between SELLER and its accounting methods or principles applicable to the Business, except as required by GAAP or applicable law;container supplier; or (j) make any material changes Agree, whether in anywriting or otherwise, or institute any new, coupon programs or trade promotion activities related to the Xxxxx Xxxx Business; (k) make any new (or change any current) Tax election that is specific and unique to Windmill with respect to Taxes affecting Windmill (PROVIDED that nothing in this Section 5.2(k) shall prevent Sellers from making (or changing) any Tax election generally applicable to members of a consolidated, combined or unitary group of which Windmill is a member); or (l) agree or commit to do any of the foregoing.