Common use of Prior to the Closing Clause in Contracts

Prior to the Closing. the Buyer shall provide to Seller a list of those employees of the Company whose employment Buyer intends to terminate after the Closing (the "Identified Employees") and Seller shall cause the Company prior to the Closing to show on its Financial Statements and the Preliminary Closing Balance Sheet, a liability equal to the amount that the Identified Employees would be eligible to receive under Company's severance pay plan and any pay-in-lieu-of-vacation arrangement offered by the Company and all employment taxes thereon computed as if the Company had terminated such employees' employment at Closing. As to such Identified Employees, Seller shall have the sole option to determine if the Identified Employees shall continue to be employed by Seller or its Affiliates or be transferred to other divisions or facilities of the Seller or its Affiliates. Buyer shall use its commercially reasonable best efforts to retain as many of the Company employees as is feasible. Buyer shall treat all service completed by an employee with the Company or any Affiliate thereof, and any predecessor thereto, the same as service completed with Buyer for all purposes, including waiting periods relating to preexisting conditions under medical plans, vacations, severance pay, eligibility to participate in, vesting or payment of benefits under, and eligibility for early retirement or any subsidized benefit provided for under, any employee benefit plan (including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA) maintained by Buyer on or after the Closing Date, except for purposes of computing benefits under the actual benefit formula in a defined benefit plan (as defined in Section 3(35) of ERISA). Prior to the Closing, Seller shall furnish Buyer with a list of the length of service with the Company or its Affiliates, or any predecessor thereof, for each of the Employees. For purposes of computing deductible amounts (or like adjustments or limitations on coverage) under any employee welfare benefit plan (including, without limitation, any "employee welfare benefit plan" as defined in Section 3(1) of ERISA), expenses and claims previously recognized for similar purposes under the applicable welfare benefit plan of the Company or any Affiliate shall be credited or recognized under the comparable plan maintained after the Closing Date by Buyer. Notwithstanding anything to the contrary set forth in this Agreement, the Buyer shall not be required to permit the employees of the Company to participate in the Buyer's 401(k) plan prior to the first day of the first calendar quarter commencing after the Closing Date.

Prior to the Closing. the Buyer ConAgra shall provide to Seller a list of those employees of the Company whose employment Buyer intends to terminate after the Closing (the "Identified Employees") pay and Seller shall discharge in full or cause the Company prior Acquired Companies to the Closing pay and discharge in full (x) all indebtedness for borrowed funds and purchase money indebtedness owed to show on its Financial Statements a non-Affiliate of ConAgra and the Preliminary Closing Balance Sheet, a liability equal to the amount that the Identified Employees would be eligible to receive under Company's severance pay plan and incurred by any pay-in-lieu-of-vacation arrangement offered by the Company and all employment taxes thereon computed as if the Company had terminated such employees' employment at Closing. As to such Identified Employees, Seller shall have the sole option to determine if the Identified Employees shall continue to be employed by Seller or its Affiliates or be transferred to other divisions or facilities of the Seller or its Affiliates. Buyer shall use its commercially reasonable best efforts to retain as many of the Company employees as is feasible. Buyer shall treat all service completed by an employee with the Acquired Company or for which any Affiliate thereofAcquired Company has otherwise become liable or responsible, and any predecessor thereto, the same as service completed with Buyer for all purposes, including waiting periods relating to preexisting conditions under medical plans, vacations, severance pay, eligibility to participate in, vesting or payment of benefits under, and eligibility for early retirement or any subsidized benefit provided for under, any employee benefit plan (including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA) maintained by Buyer on or after the Closing Date, except for purposes of computing benefits under the actual benefit formula in a defined benefit plan (as defined in Section 3(35) of ERISA). Prior to the Closing, Seller shall furnish Buyer with a list of the length of service with the Company or its Affiliates, or any predecessor thereof, for each of the Employees. For purposes of computing deductible amounts (or like adjustments or limitations on coverage) under any employee welfare benefit plan (including, without limitation, any "employee welfare benefit plan" as defined in Section 3(1the indebtedness set forth on Exhibit 2.1.18, and (y) all indebtedness for borrowed funds and purchase money indebtedness owed to a non-Affiliate of ERISA), expenses ConAgra and claims previously recognized for similar purposes under incurred by the applicable welfare benefit plan of the Acquired Company or for which any Affiliate shall be credited Acquired Company has become liable or recognized under the comparable plan maintained responsible, pursuant to Acquisition LP's consent, after the Closing Date by Buyer. Notwithstanding anything to the contrary set forth in date of this Agreement, the Buyer shall not be required to permit the employees of the Company to participate in the Buyer's 401(k) plan Agreement and prior to the first day Closing. As of Closing, ConAgra shall settle and treat as equity or cause to be settled and treated as equity all intercompany investments and accounts of the first calendar quarter commencing after Acquired Companies, as provided in Exhibit 5.1.1, other than loans made pursuant to the Closing DateCattleco Loan Agreement. In connection with the above payments and discharges ConAgra shall obtain a release of all Liens (other than Liens relating to the Cattleco Revolver), guarantees, indemnities, bonding arrangements, letters of credit, letters of comfort and similar financial arrangements under which one or more of the Acquired Companies is obligated relating to indebtedness for borrowed funds and purchase money indebtedness. ConAgra shall release or cause to be released (i) all Liens held by ConAgra or any Subsidiary thereof encumbering the assets of any Acquired Company and (ii) any guarantees by any Acquired Company of indebtedness or other obligations of ConAgra or any Subsidiary of ConAgra other than any guarantees arising under the Deed of Cross Guarantee referred to in Section 2.1.22 below. The terms of this Section 2.1.18 shall not apply in respect to Colorado Feed LLC or Better Beef LLC.

Prior to the Closing. Buyer and the Buyer Sellers shall, and the Sellers shall provide to Seller cause a list of those employees member of the Company whose employment Buyer intends Group and/or Valia to, use commercially reasonable efforts to terminate after (i) approve and initiate (or cause to be approved and initiated), to the Closing extent permitted by applicable Law, (A) the demerger of the Vale Mais Pension Plan and the funds (assets and liabilities) of the Company (the "Identified Employees"“Demerged Pension Plan”) to a new pension plan managed by Valia, which will be created to receive the Demerged Pension Plan and (B) the transfer of the management of the Demerged Pension Plan from Valia to Itaú Fundo Multipatrocinado, (provided that the Parties agree that the Sellers shall not be deemed to have breached this covenant solely because of the failure to obtain the consent of Itaú Fundo Multipatrocinado to such transfer, and provided, further, that if such transfer has not been completed as of the Closing, Buyer shall be responsible for its completion and the Sellers shall have no further obligation with respect thereto other than to transfer the appropriate assets and liabilities to Buyer) and Seller (ii) obtain approval from the Governmental Authorities, including PREVIC, required to facilitate the actions set forth in clause (i). The Parties acknowledge that any actions taken pursuant to this Section 7.04(c) that impact the rights of participants in the Vale Mais Pension Plan shall cause the Company prior to the Closing to show on its Financial Statements only be fully effective upon PREVIC’s authorization and the Preliminary Closing Balance Sheet, a liability equal to the amount that the Identified Employees would Sellers shall not be eligible deemed to receive under Company's severance pay plan have breached this covenant solely because of the failure to obtain such authorization. Buyer shall (i) promptly upon request by the Sellers, reimburse the Sellers for all reasonable and any pay-in-lieudocumented out-of-vacation arrangement offered by the Company pocket fees and all employment taxes thereon computed as if the Company had terminated such employees' employment at Closing. As to such Identified Employees, Seller shall have the sole option to determine if the Identified Employees shall continue to be employed by Seller or its Affiliates or be transferred to other divisions or facilities expenses of the Seller or its Affiliates. Buyer shall use its commercially reasonable best efforts to retain as many of the Company employees as is feasible. Buyer shall treat all service completed by an employee with the Company or any Affiliate thereof, Sellers and any predecessor thereto, the same as service completed with Buyer for all purposes, including waiting periods relating to preexisting conditions under medical plans, vacations, severance pay, eligibility to participate in, vesting or payment of benefits under, and eligibility for early retirement or any subsidized benefit provided for under, any employee benefit plan their respective Affiliates (including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA) maintained by Buyer on or after the Closing Date, except for purposes of computing benefits under the actual benefit formula in a defined benefit plan (as defined in Section 3(35) of ERISA). Prior prior to the Closing, Seller shall furnish Buyer with a list of the length of service with the Company or its AffiliatesGroup) and all reasonable and documented fees and expenses of their outside representatives incurred in connection with this Section 7.04(c), or any predecessor thereof, for each of and (ii) indemnify and hold harmless the Employees. For purposes of computing deductible amounts (or like adjustments or limitations on coverage) under any employee welfare benefit plan Sellers and their respective Affiliates (including, without limitation, any "employee welfare benefit plan" as defined in Section 3(1) of ERISA), expenses and claims previously recognized for similar purposes under the applicable welfare benefit plan of the Company or any Affiliate shall be credited or recognized under the comparable plan maintained after the Closing Date by Buyer. Notwithstanding anything to the contrary set forth in this Agreement, the Buyer shall not be required to permit the employees of the Company to participate in the Buyer's 401(k) plan prior to the first day Closing, the Company Group), and their respective officers, employees and representatives, against any claim, Loss, damage, interest, injury, Liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable fees and expenses of outside representatives) or settlement payment incurred as a result of the first calendar quarter commencing after actions taken pursuant to and in accordance with this Section 7.04(c) (it being understood that no such fees, expenses, claims, Losses, damages, interest, injuries, Liabilities, judgments, awards, penalties, fines, Taxes, costs (including costs of investigation) or settlement payments incurred by the Closing DateSellers or their respective Affiliates (including, prior to the Closing, the Company Group) pursuant to this last sentence of Section 7.04(c) shall constitute Transaction Expenses for any purpose hereunder).

Prior to the Closing. Buyer and the Buyer Sellers shall, and the Sellers shall provide to Seller cause a list of those employees member of the Company whose employment Buyer intends Group and/or Valia to, use commercially reasonable efforts to terminate after (i) approve and initiate (or cause to be approved and initiated), to the Closing extent permitted by applicable Law, (A) the demerger of the Vale Mais Pension Plan and the funds (assets and liabilities) of the Company (the "Identified Employees"“Demerged Pension Plan”) to a new pension plan managed by Valia, which will be created to receive the Demerged Pension Plan and (B) the transfer of the management of the Demerged Pension Plan from Valia to Itaú Fundo Multipatrocinado, (provided that the Parties agree that the Sellers shall not be deemed to have breached this covenant solely because of the failure to obtain the consent of Itaú Fundo Multipatrocinado to such transfer, and provided, further, that if such transfer has not been completed as of the Closing, Buyer shall be responsible for its completion and the Sellers shall have no further obligation with respect thereto other than to transfer the appropriate assets and liabilities to Buyer) and Seller (ii) obtain approval from the Governmental Authorities, including PREVIC, required to facilitate the actions set forth 110 in clause (i). The Parties acknowledge that any actions taken pursuant to this Section 7.04(c) that impact the rights of participants in the Vale Mais Pension Plan shall cause the Company prior to the Closing to show on its Financial Statements only be fully effective upon PREVIC’s authorization and the Preliminary Closing Balance Sheet, a liability equal to the amount that the Identified Employees would Sellers shall not be eligible deemed to receive under Company's severance pay plan have breached this covenant solely because of the failure to obtain such authorization. Buyer shall (i) promptly upon request by the Sellers, reimburse the Sellers for all reasonable and any pay-in-lieudocumented out-of-vacation arrangement offered by the Company pocket fees and all employment taxes thereon computed as if the Company had terminated such employees' employment at Closing. As to such Identified Employees, Seller shall have the sole option to determine if the Identified Employees shall continue to be employed by Seller or its Affiliates or be transferred to other divisions or facilities expenses of the Seller or its Affiliates. Buyer shall use its commercially reasonable best efforts to retain as many of the Company employees as is feasible. Buyer shall treat all service completed by an employee with the Company or any Affiliate thereof, Sellers and any predecessor thereto, the same as service completed with Buyer for all purposes, including waiting periods relating to preexisting conditions under medical plans, vacations, severance pay, eligibility to participate in, vesting or payment of benefits under, and eligibility for early retirement or any subsidized benefit provided for under, any employee benefit plan their respective Affiliates (including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA) maintained by Buyer on or after the Closing Date, except for purposes of computing benefits under the actual benefit formula in a defined benefit plan (as defined in Section 3(35) of ERISA). Prior prior to the Closing, Seller shall furnish Buyer with a list of the length of service with the Company or its AffiliatesGroup) and all reasonable and documented fees and expenses of their outside representatives incurred in connection with this Section 7.04(c), or any predecessor thereof, for each of and (ii) indemnify and hold harmless the Employees. For purposes of computing deductible amounts (or like adjustments or limitations on coverage) under any employee welfare benefit plan Sellers and their respective Affiliates (including, without limitation, any "employee welfare benefit plan" as defined in Section 3(1) of ERISA), expenses and claims previously recognized for similar purposes under the applicable welfare benefit plan of the Company or any Affiliate shall be credited or recognized under the comparable plan maintained after the Closing Date by Buyer. Notwithstanding anything to the contrary set forth in this Agreement, the Buyer shall not be required to permit the employees of the Company to participate in the Buyer's 401(k) plan prior to the first day Closing, the Company Group), and their respective officers, employees and representatives, against any claim, Loss, damage, interest, injury, Liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including reasonable fees and expenses of outside representatives) or settlement payment incurred as a result of the first calendar quarter commencing after actions taken pursuant to and in accordance with this Section 7.04(c) (it being understood that no such fees, expenses, claims, Losses, damages, interest, injuries, Liabilities, judgments, awards, penalties, fines, Taxes, costs (including costs of investigation) or settlement payments incurred by the Closing DateSellers or their respective Affiliates (including, prior to the Closing, the Company Group) pursuant to this last sentence of Section 7.04(c) shall constitute Transaction Expenses for any purpose hereunder).

Prior to the Closing. the Buyer shall provide to Seller a list of those employees may obtain an update of the Company whose employment Buyer intends Commitment and Survey (and shall reasonably promptly after receipt forward such update, or cause such updated Commitment and/or Survey to terminate be forwarded, to Seller’s counsel). Within five (5) business days after the Closing (the "Identified Employees") receipt of any such update, and Seller shall cause the Company in any event prior to the Closing Date, Buyer shall provide written notice to show on its Financial Statements Seller of any exception to title or Survey item in such update that is first appearing which is not a Permitted Encumbrance, and to which Buyer objects as permitted in accordance with the Preliminary Closing Balance Sheet, terms of this Agreement. Any timely objection Buyer makes to any updated Commitment or Survey which is not a liability equal to the amount that the Identified Employees would be eligible to receive under Company's severance pay plan and any pay-in-lieu-of-vacation arrangement offered by the Company and all employment taxes thereon computed as if the Company had terminated such employees' employment at ClosingPermitted Encumbrance is deemed a “Title Objection”. As to such Identified EmployeesWithin five (5) business days after Buyer notifies Seller of a given Title Objection, Seller shall advise Buyer in writing whether or not Seller intends to cure such Title Objection; provided, however, Seller shall be obligated in any event to cure any and all Mandatory Liens. In the event Seller notifies Buyer that Seller does not intend to cure such Title Objection (other than a Mandatory Lien), Buyer shall have the right, as its sole option to determine if the Identified Employees shall continue remedy, to be employed exercised within five (5) business days after receipt of such notice from Seller (time being of the essence), to terminate this Agreement by written notice to Seller and receive the Option Deposit, and thereafter neither party shall have any rights or obligations hereunder other than those rights and obligations expressly stated herein to survive the termination of this Agreement. If Buyer does not so elect in writing to terminate this Agreement, then Buyer shall remain obligated hereunder and shall accept title to the Property subject to such Title Objection (which shall be deemed a Permitted Encumbrance). In the event Seller is unable to eliminate any Title Objection by the Closing Date, unless the same is waived by Buyer in writing, Seller may adjourn the Closing Date for a reasonable period or periods not to exceed thirty (30) days in the aggregate (the “Title Cure Period”), in order to attempt to eliminate such exception. Subject to Seller’s adjournment right above, Seller shall at its expense cause any matter which is the subject of a Mandatory Lien to be bonded or otherwise discharged of record (if applicable) by the Closing. “Mandatory Liens” shall mean the following: (i) all mortgages recorded against or otherwise secured by the Property and related UCC filings and assignment of leases and rents and other evidence of indebtedness secured by the Property; (ii) liens or encumbrances voluntarily created or permitted by Seller or its Affiliates affiliates; (iii) judgments against Seller and/or any encumbrance or matter to the extent any of them shall then be transferred to other divisions or facilities of the Seller or its Affiliates. Buyer a lien and shall use its commercially reasonable best efforts to retain as many of the Company employees as is feasible. Buyer shall treat all service completed by an employee with the Company or any Affiliate thereof, and any predecessor thereto, the same as service completed with Buyer for all purposes, including waiting periods relating to preexisting conditions under medical plans, vacations, severance pay, eligibility to participate in, vesting or payment of benefits under, and eligibility for early retirement or any subsidized benefit provided for under, any employee benefit plan (including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA) maintained by Buyer on or after the Closing Date, except for purposes of computing benefits under the actual benefit formula be in a defined benefit plan determined monetary amount; and (as defined in Section 3(35iv) of ERISA). Prior to the Closingmechanics’, Seller shall furnish Buyer with a list of the length of service with the Company or its Affiliates, or materialmans’ and other similar statutory liens (excluding any predecessor thereof, for each of the Employees. For purposes of computing deductible amounts (or like adjustments or limitations on coverage) under any employee welfare benefit plan (including, without limitation, any "employee welfare benefit plan" as defined in Section 3(1) of ERISATenant’s Mechanic’s Liens), expenses and claims previously recognized for similar purposes under the applicable welfare benefit plan of the Company or any Affiliate shall be credited or recognized under the comparable plan maintained after the Closing Date by Buyer. Notwithstanding anything subject to the contrary set forth in this Agreement, the Buyer shall not be required to permit the employees of the Company to participate in the Buyer's 401(k) plan prior to the first day of the first calendar quarter commencing after the Closing DateSection 3.09.

Prior to the Closing. the Buyer (i) Seller shall provide to Seller a list of those employees not (a) enter into any new lease, license or other occupancy agreement for all or any portion of the Company whose employment Buyer intends to terminate after Property without Purchaser’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed so long as: (1) the Closing (rent for any such portion of the "Identified Employees") and Seller Property shall cause the Company prior to the Closing to show on its Financial Statements and the Preliminary Closing Balance Sheet, a liability be at least equal to the amount that market rent (taking into account leasing concessions and other economic parameters of such lease); (2) the Identified Employees would term shall not exceed ten (10) years; and (3) the creditworthiness of the proposed tenant shall be eligible commercially reasonably taking into account the size and nature of the Premises and the subject demised premises, or (b) enter into any terminations, amendments, expansions or renewals of Leases (other than (i) a termination in accordance with Section 20(A)(iii) hereof or (ii) pursuant to receive the express terms of any Lease), in each instance without Purchaser’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned. If Purchaser fails to respond to a request from Seller for consent to any action for which Purchaser’s consent is required under Company's severance pay plan and any pay-in-lieu-of-vacation arrangement offered by the Company and all employment taxes thereon computed as if the Company had terminated such employees' employment at Closing. As this Section 20(A)(i) within five (5) business days after Purchaser’s receipt of Seller’s written request, which request shall include a summary of terms relating to such Identified Employeesrequest, Seller shall have the sole option Purchaser’s consent to determine if the Identified Employees shall continue to be employed by Seller or its Affiliates or be transferred to other divisions or facilities of the Seller or its Affiliates. Buyer shall use its commercially reasonable best efforts to retain as many of the Company employees as is feasible. Buyer shall treat all service completed by an employee with the Company or any Affiliate thereof, and any predecessor thereto, the same as service completed with Buyer for all purposes, including waiting periods relating to preexisting conditions under medical plans, vacations, severance pay, eligibility to participate in, vesting or payment of benefits under, and eligibility for early retirement or any subsidized benefit provided for under, any employee benefit plan (including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA) maintained by Buyer on or after the Closing Date, except for purposes of computing benefits under the actual benefit formula in a defined benefit plan (as defined in Section 3(35) of ERISA). Prior to the Closing, Seller shall furnish Buyer with a list of the length of service with the Company or its Affiliates, or any predecessor thereof, for each of the Employees. For purposes of computing deductible amounts (or like adjustments or limitations on coverage) under any employee welfare benefit plan (including, without limitation, any "employee welfare benefit plan" as defined in Section 3(1) of ERISA), expenses and claims previously recognized for similar purposes under the applicable welfare benefit plan of the Company or any Affiliate such action shall be credited or recognized under the comparable plan maintained after the Closing Date by Buyerdeemed granted. Notwithstanding anything to the contrary set forth in this Agreementcontained herein, the Buyer Seller’s approval shall not be required for any amendment to permit the employees Lease for Macy’s Inc. or any new lease entered into by Seller with Macy’s Inc. in either case in connection with the exercise by Macy’s Inc. of the Company its right of first offer, pursuant to participate its existing Lease, provided that any such amendment or new lease is on substantially similar terms as are set forth in the Buyer's 401(knotice letter sent to Macy’s Inc. by Seller on July 18, 2013. (ii) plan Seller shall not enter into any Service Contracts or CBAs, other than with the consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed, except that Seller may enter into Service Contracts which (A) expire prior to the first day of the first calendar quarter commencing after Closing Date, (B) are cancelable at any time without cause or penalty payment by Purchaser on not more than thirty (30) days’ notice or (C) are terminated prior to the Closing Date; (iii) Subject to Section 20(A)(v), Seller shall keep and perform in all material respects all of the obligations to be performed by it under the Leases (“Landlord’s Lease Obligations”); provided that anything in this Agreement to the contrary notwithstanding, nothing contained in this Agreement shall prohibit Seller from terminating any Lease by virtue of a default by the tenant thereunder, bringing any proceeding against a Tenant by reason of a default by such Tenant under the Lease for such Tenant or applying a Security Deposit under a Lease in accordance with the terms of such Lease or by reason of default of a Tenant under its Lease; (iv) Seller shall not create, incur or suffer to exist any mortgage, deed of trust, lien, pledge or other encumbrance in any way affecting any portion of the Premises that will survive the Closing other than the Permitted Exceptions; (v) Seller shall operate the Premises substantially in accordance with past practice and substantially in accordance with its obligations under existing loan documents and the Leases, reasonable wear and tear excepted; provided, however, that except for Landlord’s Lease Obligations, Seller may (subject to Seller’s receipt of Purchaser’s prior written consent), but shall not be obligated to, make any capital or other repairs, or replacements or any material improvements to the Premises. To the extent Seller is required to make any repairs, replacements or improvements to the Premises (other than Landlord’s Lease Obligations) or Seller elects to make any repairs, replacements or improvements to the Premises (other than Landlord’s Lease Obligations) and in either case Purchaser approves such repairs, replacements or improvements (which approval Purchaser may withhold in Purchaser’s sole and absolute discretion), Purchaser shall, on or before the Closing, reimburse Seller for the unamortized costs of such repairs, replacements or improvements that are capital in nature (it being understood that Purchaser’s approval shall not be required for Seller’s ordinary maintenance of the Property); (vi) Seller shall maintain the insurance coverage on the Premises which is at least equivalent in all material respects to Seller’s insurance policies covering the Premises as of the date hereof; (vii) Seller shall not transfer or remove any material Fixtures or Personal Property from the Property except for the purpose of repair or replacement thereof. Any Fixtures or items of Personal Property replaced after the date hereof shall be installed prior to Closing and shall be of substantially similar quality of the Fixture or item of Personal Property being replaced; (viii) Seller shall not alter the number of Union Employees or remove or replace any Union Employee from the Property, or adjust any grievance affecting the number or identity of any Union Employees assigned or to be assigned to work at the Property without prior notice to and consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed, except where there is a termination for just cause or other legitimate business reason for removing or replacing any Union Employee, or as may be necessary due to a reduction in force as permitted by the Union Agreements, or due to the need to recall any employee from layoff as required under the Union Agreements; (ix) Seller, to the extent received by Seller, shall promptly deliver to Purchaser copies of written default notices and written notices of lawsuits affecting the Leases, the Surviving Contracts or the Premises. (x) Purchaser shall reasonably cooperate and require its lender, if any, to reasonably cooperate with the defeasance of the existing loan at no additional cost or liability (other than de minimis amounts) to Purchaser or Purchaser’s lender.

Prior to the Closing. Seller shall, and shall cause its Subsidiaries to, consummate the Buyer shall provide transactions listed in Section 2.4(b) of the Disclosure Letter in order to transfer or convey to Seller or a list Subsidiary of those employees of Seller (other than the Company whose employment Buyer intends or a Division Entity) all of their right, title and interest in and to terminate after (i) the Closing (the "Identified Employees") and Seller shall cause the Company prior to the Closing to show on its Financial Statements and the Preliminary Closing Balance Sheet, a liability equal to the amount that the Identified Employees would be eligible to receive under Company's severance pay plan and any pay-in-lieu-of-vacation arrangement offered equity interests in all Subsidiaries of or other entities owned by the Company and all employment taxes thereon computed as if the Company had terminated Division Entities that are not engaged in the conduct of the Business and (ii) such employees' employment at Closingother properties, assets and Contracts that are not primarily used in the conduct of Business and which are set forth in Section 2.4(b) of the Disclosure Letter (collectively, the "Excluded Assets"). As to such Identified Employees, Seller Section 2.4(b) of the Disclosure Letter shall have also set forth a list of each of the sole option to determine if the Identified Employees shall continue to be employed outpatient rehabilitation clinics owned or controlled by Seller or its Affiliates Subsidiaries at any time since September 30, 2005 that will not be owned by the Company or be transferred to the Division immediately after the Closing. Such outpatient rehabilitation clinics and any other divisions clinic presently or facilities of the formerly owned or operated by Seller or its Affiliates. Subsidiaries (other than the Going Clinics) shall be referred to as the "Staying Clinics." Buyer shall use its commercially reasonable best efforts to retain as many of the Company employees as is feasible. Buyer shall treat all service completed by an employee with the Company and Seller agree that any liabilities or any Affiliate thereof, and any predecessor thereto, the same as service completed with Buyer for all purposes, including waiting periods relating to preexisting conditions under medical plans, vacations, severance pay, eligibility to participate in, vesting or payment of benefits under, and eligibility for early retirement or any subsidized benefit provided for under, any employee benefit plan (including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA) maintained by Buyer on or after the Closing Date, except for purposes of computing benefits under the actual benefit formula in a defined benefit plan (as defined in Section 3(35) of ERISA). Prior to the Closing, Seller shall furnish Buyer with a list of the length of service with the Company or its Affiliates, or any predecessor thereof, for each of the Employees. For purposes of computing deductible amounts (or like adjustments or limitations on coverage) under any employee welfare benefit plan (including, without limitation, any "employee welfare benefit plan" as defined in Section 3(1) of ERISA), expenses and claims previously recognized for similar purposes under the applicable welfare benefit plan obligations of the Company or any Affiliate shall be credited or recognized under the comparable plan maintained after the Closing Date by Buyer. Notwithstanding anything Division Entity that relate to the contrary set forth in this Agreement, Excluded Assets or the Buyer shall not Staying Clinics will also be required transferred to permit the employees or assumed by Seller or a Subsidiary of Seller (other than the Company to participate in the Buyer's 401(kor its Subsidiaries) plan prior to the first day Effective Time, and that the Company and the Division Entities shall be released from any obligation relating to such liabilities as of the first calendar quarter commencing after Effective Time and indemnified by Seller from and against such liabilities. The transactions listed in Sections 2.4(a) and 2.4(b) of the Closing DateDisclosure Letter shall be collectively referred to herein as the "Restructuring Transactions," and the agreements to effectuate the Restructuring Transactions shall be referred to herein as the "Restructuring Agreements." Together, the Transition Agreement and the Restructuring Agreements are referred to herein as the "Ancillary

Prior to the Closing. the Buyer i. Seller shall provide to Seller a list of those employees not enter into any Service Contracts or collective bargaining agreements, except renewals of the Company whose employment Buyer intends to terminate after Union Agreements, other than with the Closing (consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed, except for Service Contracts entered into in the "Identified Employees") ordinary course of Seller’s business and Seller shall cause the Company which expire prior to the Closing Date or are cancelable at any time without cause on not more than thirty (30) days’ notice; With respect to show on its Financial Statements and the Preliminary Closing Balance Sheet, a liability equal any Service Contract that pertains in part to the amount that the Identified Employees would be eligible Premises and in part to receive under Company's severance pay plan other properties owned by affiliates of Seller (and not any pay-in-lieu-of-vacation arrangement offered by the Company and all employment taxes thereon computed as if the Company had terminated such employees' employment at Closing. As to such Identified EmployeesSurviving Contracts), Seller shall have terminate such Service Contract as the sole option same applies to determine if the Identified Employees shall continue to be employed by Seller or its Affiliates or be transferred to other divisions or facilities Premises as of the Seller or its Affiliates. Buyer shall use its commercially reasonable best efforts Closing and pay any and all fees due thereunder; at Purchaser’s request, prior to retain as many of the Company employees as is feasible. Buyer shall treat all service completed by an employee with the Company or any Affiliate thereof, and any predecessor thereto, the same as service completed with Buyer for all purposes, including waiting periods relating to preexisting conditions under medical plans, vacations, severance pay, eligibility to participate in, vesting or payment of benefits under, and eligibility for early retirement or any subsidized benefit provided for under, any employee benefit plan (including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA) maintained by Buyer on or after the Closing Date, except for purposes of computing benefits under the actual benefit formula in a defined benefit plan (as defined in Section 3(35) of ERISA). Prior to the Closing, Seller shall furnish Buyer cooperate with Purchaser at Purchaser’s sole cost and expense so that Purchaser may obtain an agreement with AlliedBarton Security covering security guards at the Premises, including without limitation those security guards listed on Exhibit 16(A)(v), on terms acceptable to Purchaser, provided, that it shall not be a list condition to Purchaser’s obligation to consummate the Closing under this Agreement that such agreement be obtained, and the foregoing (and the failure to obtain such an agreement) shall not be deemed to limit Purchaser’s obligations pursuant to Section 11(A) hereof; ii. Subject to Section 20(A)(v), Seller shall keep and perform in all material respects all of the length of service with the Company or its Affiliates, or any predecessor thereof, for each of the Employees. For purposes of computing deductible amounts (or like adjustments or limitations on coverage) under any employee welfare benefit plan (including, without limitation, any "employee welfare benefit plan" as defined in Section 3(1) of ERISA), expenses and claims previously recognized for similar purposes obligations to be performed by Seller under the applicable welfare benefit plan of the Company or any Affiliate shall be credited or recognized under the comparable plan maintained after the Closing Date by Buyer. Notwithstanding Leases (“Landlord’s Lease Obligations”); provided that anything in this Agreement to the contrary set forth notwithstanding, nothing contained in this Agreement shall prohibit Seller from terminating any Lease by virtue of a default by the tenant thereunder, bringing any proceeding against a Tenant by reason of a default by such Tenant under the Lease for such Tenant, or applying a Security Deposit under a Lease in accordance with the terms of such Lease or by reason of default of a Tenant under its Lease; iii. So long as Purchaser is not in default of its obligation to consummate the Closing under this Agreement, Seller shall not, between the Buyer date hereof and the Closing, (a) enter into any new lease or occupancy agreement for all or any portion of the Property without Purchaser’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed so long as: (1) the rent for any such portion of the Property shall be at least equal to the market rent; (2) the term shall not exceed ten (10) years; and (3) the creditworthiness of the proposed tenant shall be reasonably comparable to the existing Tenants, or (b) enter into any terminations, amendments, expansions or renewals of Leases (other than (i) a termination in accordance with Section 20(A)(ii) hereof or (ii) pursuant to the express terms of any Lease), in each instance without Purchaser’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned by Purchaser; iv. Seller shall not create, incur or suffer to exist any mortgage, deed of trust, lien, pledge or other encumbrance in any way affecting any portion of the Premises that will survive the Closing; v. Seller shall operate the Premises and administer the Leases in accordance with past practice, reasonable wear and tear excepted; provided, however, that except for Landlord’s Lease Obligations, Seller may but shall not be obligated to make any capital or other repairs, replacements or improvements to the Premises. To the extent Seller is required to permit make any repairs, replacements or improvements to the employees Improvements (other than Landlord’s Lease Obligations) or Seller elects to make any repairs, replacements or improvements to the Premises (other than Landlord’s Lease Obligations) and the Purchaser approves such election (which approval shall not be unreasonably withheld, conditioned or delayed), Purchaser shall, on or before the Closing, reimburse Seller for the unamortized costs of such repairs, replacements or improvements that are capital in nature; vi. Seller shall maintain fire and extended coverage insurance on the Premises which is at least equivalent in all material respects to Seller’s insurance policies covering the Premises as of the Company to participate in date hereof; vii. Seller shall not transfer or remove any material Personal Property from the Buyer's 401(k) plan Property except for the purpose of repair or replacement thereof. Any items of Personal Property replaced after the date hereof shall be installed prior to the first day Closing and shall be of substantially similar quality of the first calendar quarter commencing after item of Personal Property being replaced; viii. Seller shall not alter the Closing Datenumber of Union Employees or remove or replace any Union Employee from the Property, or adjust any grievance affecting the number or identity of any Union Employees assigned or to be assigned to work at the Property without prior notice to and consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed, except where there is a termination for just cause or other legitimate business reason for removing or replacing any Union Employee, or as may be necessary due to a reduction in force as permitted by the Union Agreements, or due to the need to recall any employee from layoff as required under the Union Agreements; and ix. Seller, to the extent received by Seller, shall promptly deliver to Purchaser copies of written default notices and written notices of lawsuits affecting the Leases, the Surviving Contracts or the Premises.

Prior to the Closing. the Buyer shall provide to Seller a list of those employees of the Company whose employment Buyer intends to terminate after the Closing (the "Identified Employees") and i. Seller shall cause not enter into any new lease of space or other occupancy arrangement or any New Contract, or materially amend or modify the Company same or approve any assignment or sublease (to the extent Seller’s approval is required under a Lease), in each case, other than (a) with the consent of Purchaser, which consent Purchaser shall not unreasonably withhold, condition or delay, or (b) New Contracts which expire or are cancelable prior to the Closing Date or are cancelable at any time without cause and without penalty on not more than thirty (30) days’ notice, or (c) renewals, extensions, expansions or consents under Leases which, under the terms of the applicable Lease, do not require the consent of the lessor thereunder or to show on its Financial Statements which the consent or approval of the lessor shall not be unreasonably withheld and the Preliminary Closing Balance Sheet, as to which Seller has no reasonable basis for objecting. If Purchaser fails to respond to a liability equal request from Seller for consent to the amount that the Identified Employees would be eligible to receive any action for which Purchaser’s consent is required under Company's severance pay plan and any pay-in-lieu-of-vacation arrangement offered by the Company and all employment taxes thereon computed as if the Company had terminated such employees' employment at Closing. As to such Identified Employeesthis Section 20(a)(i) within five (5) business days after Purchaser’s receipt of Seller’s written request, Seller shall send a second (2nd) notice within two (2) additional business days. Purchaser’s consent to such action shall be deemed granted if Purchaser fails to respond prior to the expiration of such additional two (2) business day period. If Purchaser withholds consent for Seller to enter into a new lease, or to renew any Lease, at market rate rent, and which new lease or renewal Lease contains provisions for security, free rent, tenant improvement allowance or other concessions consistent with existing Leases in the Premises and is with a tenant whose creditworthiness and proposed use are consistent with those of other Tenants in the Premises, Seller shall not proceed with said new lease or renewal Lease and Purchaser shall pay to Seller at Closing, or, if this Agreement is terminated, upon such termination, any rent which would have been payable under such new lease or renewal Lease prior to the sole option Closing or termination, as applicable (less applicable leasing commissions, work allowances and rent credits which would have been incurred to determine if effectuate such new lease or renewal); ii. Subject to subsection 20(a)(v), Seller shall keep and perform in all material respects all of the Identified Employees shall continue obligations to be employed performed by it under the Leases (“Landlord’s Lease Obligations”); provided that anything in this Agreement to the contrary notwithstanding, nothing contained in this Agreement shall prohibit Seller from terminating any tenancy of a Tenant other than a Material Tenant or bringing any proceeding against a Tenant other than a Material Tenant by reason of a default under a Lease in accordance with the terms of such Lease. iii. Seller shall not be obligated to re-rent any portion of the Property which become vacant between the date hereof and the Closing Date; iv. Seller shall not create, incur or suffer to exist any mortgage, deed of trust, lien, pledge or other encumbrance in any way affecting any portion of the Premises that will survive the Closing; and v. Seller shall operate the Premises in accordance with past practice or substantially similar to how a prudent owner of property similar to the Premises would operate (including using reasonable efforts to enter into leases with tenants for the portions of the Property which are vacant as of the date hereof, provided, however, Seller’s failure to enter into leases with tenants for the portions of the Property which are vacant as of the date hereof shall not be deemed a default by Seller or its Affiliates or be transferred hereunder and Purchaser shall have no claim against Seller in the event Seller fails to other divisions or facilities enter into any leases with respect to any portion of the Property prior to Closing) and substantially in accordance with its obligations under the Leases in effect at Closing, reasonable wear and tear excepted; provided, however, Seller shall not be obligated to make any repairs, replacements or its Affiliates. Buyer shall use its commercially reasonable best efforts improvements to retain the Premises other than as many of the Company employees as is feasible. Buyer shall treat all service completed by an employee required pursuant to Landlord’s Lease Requirements or in accordance with the Company past practice of Seller (as determined by Seller in good faith). To the extent Seller is required to make any capital repairs, replacements or improvements to the Premises as part of Landlord’s Lease Requirements or in accordance with the past practice of Seller (collectively, “Capital Repairs”) pursuant to Landlord’s Lease Requirements, Purchaser shall, on or before the Closing, reimburse Seller for all sums actually expended by Seller between the date of this Agreement and the Closing Date on account of such Capital Repairs. Any contracts to be entered into for Capital Repairs (“Capital Repair Contracts”) shall be subject to the approval of Purchaser, which approval shall not be unreasonably withheld, conditioned or delayed. If Purchaser fails to respond to a request from Seller for approval of a Capital Repair Contract under this Section 20(a)(v) within three (3) business days after Purchaser’s receipt of Seller’s written request, Seller shall send a second (2nd) notice within two (2) additional business days. Purchaser’s approval of such Capital Repair Contract shall be deemed granted if Purchaser fails to respond prior to the expiration of such additional two (2) business day period. Notwithstanding anything contained in this Agreement to the contrary, the completion of a Capital Repair undertaken by Seller hereunder shall not be a condition precedent to Purchaser’s obligation to close hereunder and to the extent such Capital Repair is not completed prior to Closing, Purchaser shall assume the obligation to complete same post-Closing and the Capital Repair Contracts shall be assigned to and assumed by Purchaser upon Closing as Surviving Contracts. To the extent Seller elects to make any Affiliate thereofrepairs, replacements or improvements to the Premises that are not Landlord’s Lease Requirements, and any predecessor theretothe Purchaser approves such election (which approval may be granted or withheld in Purchaser’s sole discretion), Purchaser shall, on or before the same as service completed with Buyer Closing, reimburse Seller for all purposessums actually expended by Seller between the date of this Agreement and the Closing Date on account of such repairs, including waiting periods relating replacements or improvements made to preexisting conditions under medical plansthe Premises. This subsection 20(a)(v) shall not apply to Capital Repairs required to be made pursuant to a casualty or taking which shall be governed by Article 18 or for the payment for Capital Repairs which are Leasing Costs to be paid by Purchaser pursuant and Section 20(b) which shall be governed by Section 20(b). vi. Seller shall maintain the current insurance coverages on the Premises substantially as reflected on the certificates attached as Exhibit 20(a)(vi); vii. Seller shall not enter into any employment, vacationsunion or collective bargaining agreement with respect to the Premises; viii. Seller shall cooperate with Purchaser, severance payat Purchaser’s cost and expense, eligibility both prior to participate inand after the Closing, vesting in connection with any and all reasonable information requests made by or payment on behalf of benefits underPurchaser, and eligibility for early retirement or any subsidized benefit provided for underwhich are required to complete a so-called “Section 314 audit”, any employee benefit plan (including, but not limited to, any "employee benefit plan" as defined in Section 3(3) of ERISA) maintained by Buyer on or after to providing the Closing Date, except for purposes of computing benefits under the actual benefit formula in a defined benefit plan following (as defined in Section 3(35) of ERISA). Prior to the Closingextent applicable and in Seller’s possession or control or which Seller can obtain without undue burden on Seller): (a) monthly historical income statements for the Premises for 2012; (b) monthly historical income statements for the Premises for 2013, Seller shall furnish Buyer with a list year to date; (c) five (5) year of annual historical occupancy and rent for the length of service with Premises; (d) back-up and supporting documents relating to the Company or its Affiliatesitems set forth herein (such as bills, or any predecessor thereofchecks, etc.); and (e) the most current financial statement for each of the EmployeesTenants to the extent such current financial statements are in the possession of Seller or its managing agent. For In addition, Seller shall reasonably cooperate with Purchaser, at Purchaser’s cost and expense, both prior to and after the Closing, in connection with any and all reasonable information requests made by or on behalf of Purchaser, provided that such information is in Seller’s possession or control or which Seller can obtain without undue burden on Seller, relating to the Premises, including the books and records of the Premises. Seller acknowledges and agrees that any and all requests for information or documentation requested from the Purchaser or its affiliates by the Securities and Exchange Commission (“SEC”) shall be deemed “reasonable” for purposes of computing deductible amounts this Section 20(a)(viii), provided that Seller’s sole obligation under this Section 20(a)(viii) is to provide information that is in Seller’s possession or control (or like adjustments which Seller can obtain without undue burden on Seller) at Purchaser’s sole cost and expense, and to the extent such information or limitations on coverage) under documentation referred to above does not exist or is not in Seller’s possession or control, Seller shall not be required to recreate such documentation or information for Purchaser. Purchaser acknowledging that Seller purchased the Premises in January 2012 and thus has only owned the Premises for a limited period of time and has limited information, if any, predating its ownership. Purchaser hereby agrees to indemnify, defend and hold Seller, its members, officers, directors and affiliates harmless from and against any employee welfare benefit plan and all liability, loss, cost, judgment, claim, damage or expense (including, without limitation, any "employee welfare benefit plan" as defined in Section 3(1) of ERISAreasonable attorneys’ fees and expenses), expenses and claims previously recognized for similar purposes in connection with its cooperation under this Section 20(a)(viii). The provisions of this Section 20(a)(viii) shall survive until the applicable welfare benefit plan third (3rd) year anniversary of the Company Closing to the extent requests are made of Purchaser by the SEC; and ix. Promptly following receipt from Purchaser of the name of Purchaser’s mortgage lender (or any Affiliate notice from Purchaser to proceed without referencing Purchaser’s mortgage lender), Seller covenants and agrees to cause Seller’s consultant, IVI Assessment Services, Inc. (“IVI”) to issue a certification or reliance letter to Purchaser and Purchaser’s mortgage lender (if any), at Purchaser’s expense, with respect to the following reports prepared by IVI: (A) Property Condition Report with respect to the Property prepared for Atlas Capital Group, LLC, New York, New York, dated November 14, 2011 as IVI Project No. PC1119158, and (B) Phase I Environmental Site Assessment with respect to the Property prepared for Atlas Capital Group, LLC, GreenOak & Berkadia, dated November 14, 2011 as IVI Project No. PC1119158 (collectively, the “Reports”). Any such certification or reliance letter shall be credited made as of the date of such Reports and shall not include any update thereof. Purchaser hereby acknowledges that such Reports are more than one (1) year old and Seller makes no representations or recognized under the comparable plan maintained after the Closing Date by Buyerwarranties with respect to such Reports. Notwithstanding anything Seller hereby waives any conflict of interest or proprietary rights with respect to the contrary set forth in this Agreement, the Buyer shall not be required to permit the employees of the Company to participate in the Buyer's 401(k) plan prior to the first day of the first calendar quarter commencing after the Closing DateReports.