Common use of Ordinary Conduct Clause in Contracts

Ordinary Conduct. Except as set forth in the capital expenditure and operating budget of VANTAS (the "VANTAS CapEx Budget") attached hereto as part of Schedule 7(b) or otherwise expressly permitted by the terms of this Agreement, from the date hereof to the Closing, VANTAS and each of its Subsidiaries shall continue to conduct their business in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve its relationships with customers and others with whom it deals, including the incurrence of expenditures in connection with the continued development of committed centers covered by the VANTAS CapEx Budget. Notwithstanding anything to the contrary contained herein, VANTAS may use available cash to repay indebtedness of VANTAS on which it is the primary obligor, including, without limitation, outstanding principal and accrued and unpaid interest pursuant to the Paribas Line (as herein defined). VANTAS and each of its Subsidiaries shall not take any action that would, or that could reasonably be expected to, result in (A) any of the representations and warranties (including, but not limited to, those set forth in Section 5(f)) of VANTAS set forth in this Agreement that are qualified as to materiality becoming untrue or incorrect, (B) any of such representations and warranties that are not so qualified becoming untrue or incorrect in any material respect or (C) any of the conditions to the HQ Merger set forth in Section 9 not being satisfied. In addition, except as set forth in the VANTAS Cap Ex Budget or Schedule 7(b), VANTAS and its Subsidiaries shall not do any of the following without the prior written consent of the Company: (i) adjust, split, combine or reclassify any of its capital stock; make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock, membership or partnership interests or any securities or obligations convertible into or exchangeable for any shares of its capital stock or membership or partnership interests; issue, deliver or sell any shares of its capital stock or membership or partnership interests or any securities convertible into or exercisable for, or any rights, options or warrants to acquire, any such shares or securities (whether for cash or property) to any person; (ii) sell, lease, transfer, or otherwise dispose of, or subject to any Lien, any of its properties or assets, or cancel, release or assign any material indebtedness owed to it or any material claim held by it, except (i) in bona fide arm's length transactions made in the ordinary course of business consistent with past practice or (ii) pursuant to contracts or agreements in force as of the date of this Agreement and listed in Schedule 7(b); (iii) incur or assume any liabilities or incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or entity (other than a wholly owned Subsidiary) except (i) pursuant to contracts or agreements listed in Schedule 7(b) or (ii) to finance any transaction permitted under Section 7(b)(iv)(ii) or pursuant to agreements entered into in connection with the financing of any transaction set forth in Schedule 7(b)(iv); (iv) make any material acquisition or investment either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity except (i) pursuant to contracts or agreements in force as of the date of this Agreement and listed in Schedule 7(b) or (ii) such acquisitions or investments not to exceed $10 million in the aggregate; (v) make any material change in any VANTAS Real Property Lease or other contracts or enter into, renew, fail to renew, terminate or permit to be terminated any VANTAS Real Property Lease or any other contract or agreement that calls for aggregate annual payments of $25,000 or more and which either (i) is not terminable by the Company or its Subsidiary, as applicable, at will on 60 days or less notice without payment of a penalty or (ii) has a term of more than six months; (vi) except in the ordinary course of business consistent with past practices (but in no event greater than 10% as to any employee (other than senior management that is entitled to increases of up to 30% of their respective base salaries)), increase the compensation or fringe benefits of any of its employees or pay any bonus, pension or retirement allowance not required by any existing plan or agreement to which any such employees are or become a party, materially amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee or accelerate the vesting of any stock options or other stock-based compensation except for accelerations required by any existing plan or agreement set forth on Schedule 5(k); (vii) make any loans, advances or capital contributions to any other person, other than loans and advances to Subsidiaries; (viii) make any capital expenditures in excess of (A) $25,000 individually or (B) $100,000 in the aggregate, other than expenditures necessary to maintain existing assets in good repair not to exceed in the aggregate $250,000; (ix) Intentionally Omitted; (x) settle any claim, action or proceeding involving money damages except in the ordinary course of business consistent with past practice for settlements for monetary damages that in any event do not, individually or in the aggregate with any other such settlements, exceed $100,000; (xi) take any action that would prevent or impede the HQ Merger from qualifying as a reorganization within the meaning of Section 368(a)(1) of the Code; provided that, entering into this Agreement and/or consummating the HQ Merger and the other transactions contemplated by this Agreement and the other agreements entered into in connection herewith and referenced herein shall not in any event be considered to result in a breach of this covenant; (xii) amend its Certificate of Incorporation, By-laws or similar governing documents, as the case may be; (xiii) enter into any new line of business other than related e-commerce services; (xiv) enter into or perform any commitment, contractual obligation, borrowing, capital expenditure or other transaction (except pursuant to agreements in force as of the date of this Agreement and listed on Schedule 5(s)) with any officer, director, consultant or Affiliate of VANTAS or any of its Subsidiaries; (xv) make any changes in its accounting methods, except as may be required under law, rule, regulation or GAAP, in each case as concurred in by such party's independent public accountants; or (xvi) agree to, or make any commitment to, do any of the foregoing. VANTAS recognizes that the agreements contained in this Section 7(b) are an integral part of the transactions contemplated by this Agreement and that without these agreements, the Company would not enter into this Agreement; accordingly, in the event of the breach by the VANTAS of the terms of this Section 7(b) the Company shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, to enforce the specific performance thereof by VANTAS, to enjoin VANTAS from actions or omissions in violation of this Section 7(b) or to otherwise obtain preliminary injunctive relief (without the necessity to post a bond) from such actions or omissions.

Ordinary Conduct. Except as set forth in the capital expenditure and operating budget of VANTAS (the "VANTAS CapEx Budget") of the Company attached hereto as part of Schedule 7(b6(b) or otherwise expressly permitted by the terms of this Agreement, from the date hereof to the Closing, VANTAS the Company and each of its Subsidiaries shall continue to conduct their business in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve its relationships with customers and others with whom it deals, including the incurrence of expenditures in connection with the continued development of committed centers covered by the VANTAS CapEx Budget. Notwithstanding anything to the contrary contained herein, VANTAS the Company may use available cash to repay indebtedness of VANTAS the Company on which it is the primary obligor, including, including without limitation, limitation outstanding principal and accrued and unpaid interest pursuant to under the Paribas Line Company's line of credit with Xxxxxx Guaranty Trust Company (as herein defined"the Xxxxxx Line"). VANTAS The Company and each of its Subsidiaries shall not take any action that would, or that could reasonably be expected to, result in (A) any of the representations and warranties (including, but not limited to, those set forth in Section 5(f4(A)(j)) of VANTAS the Company set forth in this Agreement that are qualified as to materiality becoming untrue or incorrect, (B) any of such representations and warranties that are not so qualified becoming untrue or incorrect in any material respect or (C) any of the conditions to the HQ Merger set forth in Section 9 not being satisfied. In addition, except as set forth in the VANTAS Cap Ex Company CapEx Budget or Schedule 7(b)6(b) or otherwise expressly permitted by the terms of this Agreement, VANTAS the Company and its Subsidiaries shall not do any of the following without the prior written consent of the CompanyVANTAS: (i) Except in connection with the amendments to its certificate of incorporation to be implemented by the Company prior to the Effective Time, such amendments being substantially in the form attached hereto as Exhibit B-1 and Exhibit B-1 (the "Recapitalization Amendments"), adjust, split, combine or reclassify any of its capital stock; make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock, membership or partnership interests or any securities or obligations convertible into or exchangeable for any shares of its capital stock or membership or partnership interests; issue, deliver or sell any shares of its capital stock or membership or partnership interests or any securities convertible into or exercisable for, or any rights, options or warrants to acquire, any such shares or securities (whether for cash or property) to any person; (ii) sell, lease, transfer, or otherwise dispose of, or subject to any Lien, any of its properties or assets, or cancel, release or assign any material indebtedness owed to it or any material claim held by it, except (i) in bona fide arm's length transactions made in the ordinary course of business consistent with past practice or (ii) pursuant to contracts or agreements in force as of the date of this Agreement and listed in Schedule 7(b4(o); (iii) incur or assume any liabilities or incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or entity (other than a wholly owned Subsidiary) except (i) pursuant to contracts or agreements listed in Schedule 7(b) or (ii) to finance any transaction permitted under Section 7(b)(iv)(ii) or pursuant to agreements entered into in connection with the financing of any transaction set forth in Schedule 7(b)(iv4(o); (iv) make any material acquisition or investment either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity except (i) pursuant to contracts or agreements in force as of the date of this Agreement and listed in Schedule 7(b) or (ii) such acquisitions or investments not to exceed $10 million in the aggregate4(o); (v) make any material change in any VANTAS Company Real Property Lease or other contracts or enter into, renew, fail to renew, terminate or permit to be terminated any VANTAS Company Real Property Lease or any other contract or agreement that calls for aggregate annual payments of $25,000 or more and which either (i) is not terminable by the Company or its Subsidiary, as applicable, at will on 60 days or less notice without payment of a penalty or (ii) has a term of more than six months; (vi) except in the ordinary course of business consistent with past practices (but in no event greater than 10% as to any employee (other than senior management that is entitled to increases of up to 30% of their respective base salaries)), ) increase the compensation or fringe benefits of any of its employees or pay any bonus, pension or retirement allowance not required by any existing plan or agreement to which any such employees are or become a party, materially amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee or accelerate the vesting of any stock options or other stock-based compensation except for accelerations required by any existing plan or agreement set forth on Schedule 5(k4(r); (vii) make any loans, advances or capital contributions to any other person, other than loans and advances to Subsidiaries; (viii) make any capital expenditures in excess of (A) $25,000 individually or (B) $100,000 in the aggregate, other than expenditures necessary to maintain existing assets in good repair not to exceed in the aggregate $250,000; (ix) Intentionally Omitteddisburse any cash held in acquisition indemnity escrows other than in accordance with the terms thereof; (x) settle any claim, action or proceeding involving money damages except in the ordinary course of business consistent with past practice for settlements for monetary damages that in any event do not, individually or in the aggregate with any other such settlements, exceed $100,000; provided, however, that notwithstanding the foregoing, in no event may the Company settle such claim, action or proceeding without VANTAS' prior written consent if such settlement imposes any ongoing duties, obligations or liabilities on the Company which can reasonably be expected to require the Company to incur liabilities in excess of $100,000 or unduly impair the conduct of the Company's business; (xi) take any action that would prevent or impede the HQ Merger from qualifying as a reorganization within the meaning of Section 368(a)(1) of the Code; provided that, entering into this Agreement and/or consummating the HQ Merger and the other transactions contemplated by this Agreement and the other agreements entered into in connection herewith and referenced herein shall not in any event be considered to result in a breach of this covenant; (xii) except in connection with the filing of the Recapitalization Amendments, amend (a) its Certificate of Incorporation, By-laws or similar governing documentsdocuments or (b) upon their respective filing or adoption, as applicable, any of the Holdco Charter (as herein defined), the M Sub Charter (as herein defined), the Holdco By-Laws (as herein defined) or the M Sub By-Laws (as herein defined), as the case may be; (xiii) enter into any new line of business other than related e-commerce servicesbusiness; (xiv) enter into or perform any commitment, contractual obligation, borrowing, capital expenditure or other transaction (except pursuant to agreements in force as of the date of this Agreement and listed on Schedule 5(s4(u)) with any officer, director, consultant or Affiliate of VANTAS the Company or any of its Subsidiaries; (xv) make any changes in its accounting methods, except as may be required under law, rule, regulation or GAAP, in each case as concurred in by such party's independent public accountants; or (xvi) agree to, or make any commitment to, do any of the foregoing. VANTAS The Company recognizes that the agreements contained in this Section 7(b6(b) are an integral part of the transactions contemplated by this Agreement and that without these agreements, the Company VANTAS would not enter into this Agreement; accordingly, in the event of the breach by the VANTAS Company of the terms of this Section 7(b) the Company 6(b), VANTAS shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, to enforce the specific performance thereof by VANTASthe Company, to enjoin VANTAS the Company from actions or omissions in violation of this Section 7(b6(b) or to otherwise obtain preliminary injunctive relief (without the necessity to post a bond) from such actions or omissions.

Ordinary Conduct. Except as set forth in the capital expenditure and operating budget of VANTAS (the "VANTAS CapEx Budget") of the Company attached hereto as part of Schedule 7(b6(b) or otherwise expressly permitted by the terms of this Agreement, from the date hereof to the Closing, VANTAS the Company and each of its Subsidiaries shall continue to conduct their business in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve its relationships with customers and others with whom it deals, including the incurrence of expenditures in connection with the continued development of committed centers covered by the VANTAS CapEx Budget. Notwithstanding anything to the contrary contained herein, VANTAS the Company may use available cash to repay indebtedness of VANTAS the Company on which it is the primary obligor, including, including without limitation, limitation outstanding principal and accrued and unpaid interest pursuant to under the Paribas Line Company's line of credit with Morgan Guaranty Trust Company (as herein defined"the Morgan Line"). VANTAS Xxx Xxmpany and each of its Subsidiaries shall not shaxx xxx take any action that would, or that could reasonably be expected to, result in (A) any of the representations and warranties (including, but not limited to, those set forth in Section 5(f4(A)(j)) of VANTAS the Company set forth in this Agreement that are qualified as to materiality becoming untrue or incorrect, (B) any of such representations and warranties that are not so qualified becoming untrue or incorrect in any material respect or (C) any of the conditions to the HQ Merger set forth in Section 9 not being satisfied. In addition, except as set forth in the VANTAS Cap Ex Company CapEx Budget or Schedule 7(b)6(b) or otherwise expressly permitted by the terms of this Agreement, VANTAS the Company and its Subsidiaries shall not do any of the following without the prior written consent of the CompanyVANTAS: (i) Except in connection with the amendments to its certificate of incorporation to be implemented by the Company prior to the Effective Time, such amendments being substantially in the form attached hereto as Exhibit B-1 and Exhibit B-1 (the "Recapitalization Amendments"), adjust, split, combine or reclassify any of its capital stock; make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock, membership or partnership interests or any securities or obligations convertible into or exchangeable for any shares of its capital stock or membership or partnership interests; issue, deliver or sell any shares of its capital stock or membership or partnership interests or any securities convertible into or exercisable for, or any rights, options or warrants to acquire, any such shares or securities (whether for cash or property) to any person; (ii) sell, lease, transfer, or otherwise dispose of, or subject to any Lien, any of its properties or assets, or cancel, release or assign any material indebtedness owed to it or any material claim held by it, except (i) in bona fide arm's length transactions made in the ordinary course of business consistent with past practice or (ii) pursuant to contracts or agreements in force as of the date of this Agreement and listed in Schedule 7(b4(o); (iii) incur or assume any liabilities or incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or entity (other than a wholly owned Subsidiary) except (i) pursuant to contracts or agreements listed in Schedule 7(b) or (ii) to finance any transaction permitted under Section 7(b)(iv)(ii) or pursuant to agreements entered into in connection with the financing of any transaction set forth in Schedule 7(b)(iv4(o); (iv) make any material acquisition or investment either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity except (i) pursuant to contracts or agreements in force as of the date of this Agreement and listed in Schedule 7(b) or (ii) such acquisitions or investments not to exceed $10 million in the aggregate4(o); (v) make any material change in any VANTAS Company Real Property Lease or other contracts or enter into, renew, fail to renew, terminate or permit to be terminated any VANTAS Company Real Property Lease or any other contract or agreement that calls for aggregate annual payments of $25,000 or more and which either (i) is not terminable by the Company or its Subsidiary, as applicable, at will on 60 days or less notice without payment of a penalty or (ii) has a term of more than six months; (vi) except in the ordinary course of business consistent with past practices (but in no event greater than 10% as to any employee (other than senior management that is entitled to increases of up to 30% of their respective base salaries)), ) increase the compensation or fringe benefits of any of its employees or pay any bonus, pension or retirement allowance not required by any existing plan or agreement to which any such employees are or become a party, materially amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee or accelerate the vesting of any stock options or other stock-based compensation except for accelerations required by any existing plan or agreement set forth on Schedule 5(k4(r); (vii) make any loans, advances or capital contributions to any other person, other than loans and advances to Subsidiaries; (viii) make any capital expenditures in excess of (A) $25,000 individually or (B) $100,000 in the aggregate, other than expenditures necessary to maintain existing assets in good repair not to exceed in the aggregate $250,000; (ix) Intentionally Omitteddisburse any cash held in acquisition indemnity escrows other than in accordance with the terms thereof; (x) settle any claim, action or proceeding involving money damages except in the ordinary course of business consistent with past practice for settlements for monetary damages that in any event do not, individually or in the aggregate with any other such settlements, exceed $100,000; provided, however, that notwithstanding the foregoing, in no event may the Company settle such claim, action or proceeding without VANTAS' prior written consent if such settlement imposes any ongoing duties, obligations or liabilities on the Company which can reasonably be expected to require the Company to incur liabilities in excess of $100,000 or unduly impair the conduct of the Company's business; (xi) take any action that would prevent or impede the HQ Merger from qualifying as a reorganization within the meaning of Section 368(a)(1) of the Code; provided that, entering into this Agreement and/or consummating the HQ Merger and the other transactions contemplated by this Agreement and the other agreements entered into in connection herewith and referenced herein shall not in any event be considered to result in a breach of this covenant; (xii) except in connection with the filing of the Recapitalization Amendments, amend (a) its Certificate of Incorporation, By-laws or similar governing documentsdocuments or (b) upon their respective filing or adoption, as applicable, any of the Holdco Charter (as herein defined), the M Sub Charter (as herein defined), the Holdco By-Laws (as herein defined) or the M Sub By-Laws (as herein defined), as the case may be; (xiii) enter into any new line of business other than related e-commerce servicesbusiness; (xiv) enter into or perform any commitment, contractual obligation, borrowing, capital expenditure or other transaction (except pursuant to agreements in force as of the date of this Agreement and listed on Schedule 5(s4(u)) with any officer, director, consultant or Affiliate of VANTAS the Company or any of its Subsidiaries; (xv) make any changes in its accounting methods, except as may be required under law, rule, regulation or GAAP, in each case as concurred in by such party's independent public accountants; or (xvi) agree to, or make any commitment to, do any of the foregoing. VANTAS The Company recognizes that the agreements contained in this Section 7(b6(b) are an integral part of the transactions contemplated by this Agreement and that without these agreements, the Company VANTAS would not enter into this Agreement; accordingly, in the event of the breach by the VANTAS Company of the terms of this Section 7(b) the Company 6(b), VANTAS shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, to enforce the specific performance thereof by VANTASthe Company, to enjoin VANTAS the Company from actions or omissions in violation of this Section 7(b6(b) or to otherwise obtain preliminary injunctive relief (without the necessity to post a bond) from such actions or omissions.