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

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, the Seller shall not conduct the Business other than in the ordinary course and consistent with the Seller’s prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller shall (as it relates to the Business) (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgment; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable commercial efforts to (A) preserve intact the business organization of the Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Business and (D) preserve its current relationships with the customers and suppliers of the Business and other persons with which the Business has had significant business relationships; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s prior written approval (not to be unreasonably withheld), any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable to satisfy the condition set forth in Section 7.02(a).

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure ScheduleSchedule and pursuant to Section 6.01(g), between the date hereof and the time of the Closing, neither the Seller nor any Subsidiary shall not conduct the Business its business other than in the ordinary course and consistent with the Seller’s 's and such Subsidiary's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure ScheduleSchedule and pursuant to Section 6.01(g), between the date hereof and the Closing Date, the Seller shall (as it relates cause each Subsidiary to the Business) (i) continue its their advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgmentpractice; (ii) not shorten or lengthen the customary payment cycles for any of its their payables or receivables; (iii) use its reasonable commercial their best efforts to (A) preserve intact their business organizations and the business organization of the Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01and each Subsidiary, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Seller, each Subsidiary and the Business and (D) preserve its their current relationships with the customers and their customers, suppliers of the Business and other persons with which the Business has they have had significant business relationships; and (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s 's prior written approval (not to be unreasonably withheld)approval, any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c3.20(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable to satisfy the condition set forth in Section 7.02(a).

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) 5.01 of the Disclosure Schedule, between from the date hereof and until the earlier of the time of the ClosingClosing and the termination of this Agreement pursuant to Article X, the Seller shall not it will conduct the Business other than in the ordinary course and consistent with the Seller’s prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) 5.01 of the Disclosure Schedule, the Seller shall (as it relates to the Business) (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgmentpractice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable commercial best efforts to (A) preserve intact the business organization of the Business, their Business (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Business Business, and (DC) preserve its current relationships with the customers and its employees, customers, suppliers of the Business and other persons with which the Business it has had significant business relationships; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s prior written approval (not to be unreasonably withheld), exercise any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c3.13(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable could cause any representation or warranty of the Seller to satisfy be untrue in any material respect or result in a material breach of any covenant made by the condition set forth Seller in this Agreement and (vi) without the prior written consent of the Purchaser (not to be unreasonably withheld, conditioned or delayed), with respect to the Business, take any action of the type specified in the second sentence of Section 7.02(a)3.07.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, the Seller shall not conduct the Business other than in the ordinary course and consistent with the Seller’s prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller shall (as it relates to the Purchased Business) (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgmentpractice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable commercial best efforts to (A) preserve intact the business organization of the Purchased Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01Purchased Business, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Purchased Business and (D) preserve its current relationships with the customers and suppliers of the Business and other persons with which the Business has had significant business relationshipsPurchased Business; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s prior written approval (not to be unreasonably withheld)approval, any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c3.14(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable could cause any representation or warranty of the Seller to satisfy be untrue or result in a breach of any covenant made by the condition set forth Seller in Section 7.02(a)this Agreement.

Conduct of Business Prior to the Closing. (aA) The Seller Each of the Sellers covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, the Seller Company shall not conduct the Business its business other than in the ordinary course and consistent with the Seller’s Company's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller Sellers shall (as it relates cause the Company to the Business) (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgmentpractice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable commercial best efforts to (A) preserve intact its business organization and the business organization of the Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01Company, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Business Company and the Business, and (D) preserve its current relationships with the customers and suppliers of the Business and other persons Persons with which the Business it has had significant business relationships; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s 's prior written approval (not to be unreasonably withheld)approval, any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c3.16(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable could cause any representation or warranty of the Sellers to satisfy be untrue or result in a breach of any covenant made by the condition set forth Sellers in Section 7.02(a)this Agreement.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between that from the date hereof and through the time earlier of the ClosingClosing Date or the termination of this Agreement, neither the Seller Company nor the Subsidiary shall not conduct the Business its business other than in the ordinary course and consistent with the Seller’s prior practiceConsistent With Past Practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller shall (as it relates cause the Company and the Subsidiary to the Business) (i) continue its their advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice operations, and good business judgmentplan implementation, Consistent With Past Practice; (ii) not materially shorten or lengthen the customary payment cycles for any of its their payables or receivables; (iii) use its reasonable commercial efforts to attempt to (A) preserve intact the business organization of the Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01Company, (CB) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Company and the Business except as required by applicable law and (DC) preserve its their current relationships with the customers and suppliers of the Business their employees, distributors, policyholders, contractholders, regulators, rating agencies and other persons with which the Business has had they have significant business relationships; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s 's prior written approval (not to be unreasonably withheld)approval, any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c3.19(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable to satisfy the condition Leases for Tangible Personal Property set forth in Section 7.02(a).3.20(a) of the Disclosure

Conduct of Business Prior to the Closing. (a) The Seller and the Parent each covenants and agrees that, except as described in Section 5.01(a) of the Disclosure ScheduleSchedule and except that prior to Closing the Company will release the Seller from any obligation to repay Indebtedness in an amount not to exceed $18,500,000 owed by the Seller or its Affiliates to the Company reflected on the Reference Balance Sheet or incurred since the date thereof in the ordinary course of business consistent with past practice, between the date hereof thereof and the time of the Closing, none of the Seller Seller, the Parent, the Company nor any Subsidiary shall not conduct the Business its business other than in the ordinary course and consistent with the Seller’s Company's and such Subsidiary's prior practice, except for the transfer of the Real Property contemplated in Section 8.02(n) and the transfer of the accounting computer system and software referred to in Section 5.11. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller and the Parent each shall (as it relates not cause the Company and each Subsidiary to the Business) (i) fail to continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgmentpractice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable commercial efforts fail to (A) preserve intact their business organizations and the business organization of the Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01Transferred Employees, (C) fail to continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Company, each Subsidiary and the Business and (D) fail to preserve its current relationships with the customers and its customers, suppliers of the Business and other persons with which the Business it has had significant business relationships; (iv) exercisetransfer any cash out of the Company or the Subsidiaries, but only after notice except for reimbursements to the Seller of usual and customary third party costs (including income taxes in the ordinary course of business) expended by the Seller on behalf of the business consistent with past practice, each of which costs shall be identified and explained to the Purchaser and receipt of the Purchaser’s prior written approval (not to be unreasonably withheld), any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c) of the Disclosure Schedule which by their terms would otherwise expirewriting; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable could cause any representation or warranty of the Seller or the Parent to satisfy be untrue or result in a breach of any covenant made by the condition set forth Seller or the Parent in Section 7.02(a)this Agreement.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, the Seller shall not conduct the Business other than in the ordinary course and consistent with the Seller’s 's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller shall (as it relates to the Purchased Business) (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgmentpractice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable commercial best efforts to (A) preserve intact the business organization of the Purchased Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01Purchased Business, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Purchased Business and (D) preserve its current relationships with the customers and suppliers of the Business and other persons with which the Business has had significant business relationshipsPurchased Business; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s 's prior written approval (not to be unreasonably withheld)approval, any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c3.14(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable could cause any representation or warranty of the Seller to satisfy be untrue or result in a breach of any covenant made by the condition set forth Seller in Section 7.02(a)this Agreement.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, the Seller shall not conduct the Business other than in the ordinary course and consistent with the Seller’s 's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller shall (as it relates to the Business) (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgmentpractice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable commercial efforts to (A) preserve intact the business organization of the Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Business and (D) preserve its current relationships with the customers and customers, suppliers of the Business and other persons with which the Business has they have had significant business relationships; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s prior written approval (not to be unreasonably withheld), any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c3.16(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction not in the ordinary course which would render it unable could cause any representation or warranty of the Seller to satisfy be untrue or result in a breach of any covenant made by the condition set forth Seller in Section 7.02(a)this Agreement.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees thatthat from the date of this Agreement to the Closing Date, except as described set forth in Section 5.01(a) 5.01 of the Disclosure Schedule, between neither the date hereof and the time of the Closing, the Seller Company nor any Subsidiary shall not conduct the Business its business other than in the ordinary course and consistent with the Seller’s Company's and such Subsidiary's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) 5.01 of the Disclosure Schedule, the Seller shall (as it relates cause the Company and each Subsidiary to the Business) (i) continue its their advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgmentpractice; (ii) not shorten or lengthen the customary payment cycles for any of its their payables or receivables; (iii) use its reasonable commercial their best efforts to (A) preserve intact their business organizations and the business organization of the Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01Company and each Subsidiary, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Company, each Subsidiary and the Business and (D) preserve its their current relationships with the customers and their customers, suppliers of the Business and other persons Persons with which the Business has they have had significant business relationships; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s prior written approval (not to be unreasonably withheld), any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable could reasonably be expected to satisfy cause any representation or warranty of the condition Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement; (v) not amend or waive any provision of the Chicago Stock Purchase Agreement or any other material contract of the Business; and (vi) not commit to any capital expenditures contracts, except to the extent set forth in the 2004 Budget of the Business, without the prior consent of the Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding the foregoing, the Company and the Subsidiaries are hereby expressly permitted to enter into and consummate the transactions related to the Chicago Debt subject to Section 7.02(a8.02(h).

Conduct of Business Prior to the Closing. (a) The Seller Company covenants and agrees that, except as described in Section 5.01(a6.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, the Seller Company shall not conduct the Business its business other than in the ordinary course and consistent with the Seller’s Company's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a6.01(a) of the Disclosure Schedule, the Seller Company shall (as it relates to the Business) (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgmentpractice; (ii) not shorten or lengthen the customary payment cycles for any of its payables Payables or receivablesReceivables; (iii) use its reasonable commercial best efforts to (A) preserve intact its business organization and the business organization of the Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01Company, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Company and the Business and (D) preserve its current relationships with the customers and its customers, suppliers of the Business and other persons with which the Business it has had significant business relationships; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s 's prior written approval (not to be unreasonably withheld)approval, any rights of renewal pursuant to the terms of any of the any leases or subleases set forth in Section 3.16(c) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable could cause any representation or warranty of the Company to satisfy be untrue or result in a breach of any covenant made by the condition set forth Company in Section 7.02(a)this Agreement.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a5.1(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, the Seller shall not conduct the Business other than in the ordinary course and consistent with the Seller’s prior past practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a5.1(a) of the Disclosure Schedule, the Seller shall (as it relates shall, in each case with respect to the Business) Business or the Assets, (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgmentpractice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable commercial best efforts to (A) preserve intact its business organization and the business organization of the Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of employment are to be made pursuant to Section 6.01Seller, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of Seller and the Business and (D) preserve its current relationships with the customers and its customers, suppliers of the Business and other persons with which the Business it has had significant business relationships; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s prior written approval (not to be unreasonably withheld)approval, any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c3.16(b) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which would render it unable could cause any representation or warranty of Seller to satisfy the condition set forth be untrue or result in Section 7.02(a)a breach of any covenant made by Seller in this Agreement.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees the Company covenant and agree that, except as described in Section 5.01(a) for the transfer of the Disclosure ScheduleAssets and the Assumed Liabilities to the Company pursuant to the Assignment and Assumption Agreement, between the date hereof and the time of the Closing, the Seller Component Business shall not conduct the Business be conducted other than in the ordinary course and consistent with the Seller’s prior 's past practice. Without limiting the generality of the foregoing, except the Seller and the Company, as described the case may be, shall, in Section 5.01(a) respect of the Disclosure ScheduleComponent Business and the Assets, the Seller shall (as it relates to the Business) (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice and good business judgmentpractice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable commercial best efforts to (A) preserve intact the business organization of the Component Business, (B) keep available to the Purchaser (without any obligation to increase their compensation) the services of the employees of the Seller to whom offers of who devote employment are to be made pursuant to Section 6.01time working for the Component Business, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Business maintained, and (D) preserve its current relationships with the customers and its customers, suppliers of the Business and other persons with which the Business it has had significant business relationships; (iv) exercise, but only after notice to the Purchaser and receipt of the Purchaser’s prior written approval (not to be unreasonably withheld), any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.16(c) of the Disclosure Schedule which by their terms would otherwise expire; and (v) except in accordance with Section 5.06 or Article IX, not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller or the Company in this Agreement and (v) not without the prior written consent of the Purchaser make, revoke or change (or cause or permit to be made, revoked or changed) any Tax election that would render it unable to satisfy affect the condition set forth in Section 7.02(a)Company.