definiens: wit hin the meaning of Section 7121 of the Code ( or any similar provision of state, local or non - U.S. Law ), or sur render any right to claim a material refund of Taxes, in each case, except to the extent such action would not be binding on BH, the Purchaser or any of their respective Affili ates and would not reasonably be expected to affect the Taxes of BH, the Purchaser or any of their respective Aff iliates ; ( xii ) redeem, repurchase, prepay, defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any materi al respects the terms of any Indebtedness or any de rivative financial instruments or arrangements ( including sw aps, caps, floors, futures, forward contracts and o ption agreements ), or issue or sell any debt securities o r -41- calls, options, warrants or other rights to acquire any debt securities ( directly, contingently or oth erwise ), other than Indebtedness outstanding under the DIP Facilit y in an aggregate principal amount outstanding at a ny time not to exceed $ 155,000,000 ; ( xiii ) ( A ) enter into any transactions or Contra cts with any Affiliate or other Person that would be required to be disclosed by the Paren t under Item 404 of Regulation S - K of the SEC or ( B ) any Person who beneficially owns, directly or indirectl y, more than five percent ( 5 % ) of the outstanding s hares of Parent Common Stock ; ( xiv ) cancel or fail to use commercially reasona ble efforts to maintain in the ordinary course the Sellers ’ insurance policies inc luded in, or covering any, Acquired Assets or to re new or replace existing insurance policies included in, or covering any, Acquired Assets following their term ination ; ( xv ) ( A ) enter into any lease or sublease of rea l property as lessee or sublessee, or ( B ) materially modify or amend any Lease or other l ease or sublease of real property, in each case oth er than in the ordinary course of business consistent with pas t practice ; ( xvi ) fail to maintain its Books and Records ; ( xvii ) terminate or modify or waive in any mater ial respect any right under any Permit ; ( xviii ) adopt or otherwise implement any stockho lder rights plan, or other comparable agreement ; ( xix ) convert the Chapter 11 Case into a liquida tion proceeding under Chapter 7 of the Bankruptcy Code ; ( xx ) participate in any scheduled meetings or te leconferences with, or correspond in writing, communicate or consult with the FDA or any similar Governmental Entity without providing the Purchaser ( whenever feasible and to the extent perm itted under applicable Law ) with prior written noti ce and, within twenty four ( 24 ) hours from the time such wr itten notice is delivered, the opportunity to consu lt with the Parent with respect to such correspondence, communi cation or consultation, in each case to the extent permitted by applicable Law ; ( xxi ) except as contemplated by and in accordanc e with this Agreement and the Bidding Procedures, take or cause to be taken any a ction that would reasonably be expected to material ly delay, materially impede or prevent the consummation of th e Acquisition ; ( xxii ) make any material change in billing, inve ntory management or cash management practices ( including with respect to the timing and frequency of collection of receivables and paying of payables ) or in working capital practices, or encourage any distributor or customer directly or indirectly to accelerate purchases of the Products or modify discounting, rebate and similar practices ; -42- ( xxiii ) voluntarily terminate, enter into or ame nd any Benefit Plan ; ( xxiv ) with respect to all Business Employees, e xcept as required by any Benefit Plan as in effect on the date hereof, ( A ) increase any compensation or benefits of such employees ; or ( B ) grant any incentive, bonus, severance, retention or termi nation pay or benefits ; ( xxv ) hire any employees or terminate any Offer Employees ( other than for cause ) ; ( xxvi ) enter into a collective bargaining agreem ent or other labor union Contract with respect to the Offer Employees ; ( xxvii ) amend, restate, supplement or otherwise modify the DIP Facility ; or ( xxviii ) agree or authorize, in writing or othe rwise, to take any of the foregoing actions