ANY
ASSET EXCLUSIVELY USED IN THE CONDUCT OF THE BUSINESS, OTHER THAN (I) IN THE
ORDINARY COURSE OF BUSINESS, (II)
THE DISPOSITION OF THE SECURITIES, PROPERTY
OR OTHER ASSETS LISTED IN SECTION 5.1(G) OF THE SELLER DISCLOSURE SCHEDULE,
(III) PURSUANT TO ANY CONTRACTS OF SELLER OR PARENT OR ANY AFFILIATE OF EITHER
RELATING TO THE BUSINESS AND IN EFFECT ON THE DATE HEREOF OR SET FORTH ON
SECTION 5.1(G) OF THE SELLER DISCLOSURE SCHEDULE OR ENTERED INTO IN COMPLIANCE
WITH THIS SECTION 5.1 OR (IV) AS EXPRESSLY CONTEMPLATED BY THIS AGREEMENT OR THE
CONTRIBUTION AGREEMENT;
22
(H)
EXCEPT AS REQUIRED BY ITS TERMS, NOT MATERIALLY AMEND, MODIFY OR
TERMINATE ANY MATERIAL CONTRACT OTHER THAN IN THE ORDINARY COURSE OF BUSINESS,
PROVIDED THE FOREGOING SHALL NOT PROHIBIT ALLOWING A MATERIAL CONTRACT TO LAPSE
AT THE END OF THE INITIAL TERM THEREOF;
(I)
NOT ESTABLISH, ADOPT OR ENTER INTO ANY ERISA PLAN OF THE BUSINESS
OR THE COMPANY OR ANY PLAN, AGREEMENT, PROGRAM, POLICY, TRUST, FUND OR OTHER
ARRANGEMENT THAT WOULD BE AN ERISA PLAN OF THE BUSINESS OR THE COMPANY IF IT
WERE IN EXISTENCE AS OF THE DATE OF THIS AGREEMENT;
(J)
EXCEPT AS OTHERWISE PERMITTED HEREIN OR IN THE CONTRIBUTION
AGREEMENT, NOT ISSUE (OTHER THAN TO THE COMPANY), SELL, REDEEM OR ACQUIRE FOR
VALUE ANY MEMBERSHIP INTERESTS OF THE COMPANY;
(K)
NOT EFFECT ANY RECAPITALIZATION, RECLASSIFICATION OR LIKE CHANGE
IN THE CAPITALIZATION OF THE COMPANY;
(L)
NOT AMEND THE CERTIFICATE OF INCORPORATION OR OTHER
ORGANIZATIONAL DOCUMENT OF SELLER OR THE COMPANY;
(M)
NOT SUBJECT ANY OF THE PROPERTIES EXCLUSIVELY USED IN THE CONDUCT
OF THE BUSINESS TO ANY ENCUMBRANCE OTHER THAN ANY ENCUMBRANCE REQUIRED BY THE
CREDIT AGREEMENT;
(N)
NOT MAKE ANY NEW, OR CHANGE ANY EXISTING, MATERIAL TAX ELECTIONS,
IN EACH CASE, THAT WOULD IMPOSE A LIABILITY ON BUYER OR THE COMPANY AFTER THE
CLOSING;
(O)
COMPLY IN ALL MATERIAL RESPECTS WITH ALL LAWS AND ALL ORDERS OF
ANY GOVERNMENTAL AUTHORITIES APPLICABLE TO ITS ASSETS AND THE BUSINESS;
(P)
NOT ENTER INTO OR GUARANTEE ANY NEW OR ADDITIONAL INDEBTEDNESS
OTHER THAN (I) INDEBTEDNESS INCURRED IN THE ORDINARY COURSE OF BUSINESS OR (II)
INDEBTEDNESS THAT WILL NOT BE DIRECT OR INDIRECT OBLIGATIONS OF THE COMPANY AS
OF THE CLOSING DATE, INCLUDING, WITHOUT LIMITATION, INDEBTEDNESS UNDER THE
CREDIT AGREEMENT;
(Q)
NOT INVOICE FOR ACCOUNTS RECEIVABLE OUTSIDE OF THE ORDINARY COURSE
OF BUSINESS CONSISTENT WITH PAST PRACTICE, INCLUDING BY ACCELERATING THE TIMING
OF SUCH INVOICE;
(R)
PAY ACCOUNTS PAYABLE IN THE ORDINARY COURSE OF BUSINESS
CONSISTENT WITH PAST PRACTICE;
(S)
SETTLE ANY MATERIAL ACTION RELATING EXCLUSIVELY TO THE BUSINESS;
(T)
EXCEPT (I) IN THE ORDINARY COURSE OF BUSINESS OR (II) AS MAY BE
REQUIRED PURSUANT TO ANY CONTRACT IN EFFECT ON THE DATE HEREOF, ADOPT, ENTER
INTO, OR MATERIALLY AMEND OR INCREASE THE BENEFITS OR OBLIGATIONS UNDER, ANY
CONTRACT OR ARRANGEMENT WITH RON MONTGOMERY WITH RESPECT TO HIS EMPLOYMENT WITH
SELLER OR ANY OF ITS AFFILIATES; AND
23
(U)
NOT AGREE OR COMMIT TO DO ANY OF THE FOREGOING