Common use of Operations Prior to the Closing Date Clause in Contracts

Operations Prior to the Closing Date. Sellers covenant and agree that, except (i) as expressly contemplated by this Agreement, (ii) as disclosed in Schedule 7.2 or any other Schedule as of the date hereof, (iii) for the failure to pay or otherwise honor (A) Rebates, Chargebacks and return obligations relating to Products sold by Sellers prior to the Filing or (B) any patient coupon program, (iv) with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), (v) as required by, arising out of, relating to or resulting from the Bankruptcy Case, the Canadian Proceedings or otherwise approved by the Bankruptcy Court or the Canadian Court and (vi) as otherwise required by Laws, after the Effective Date and prior to the Closing Date: (a) Sellers shall use commercially reasonable efforts, taking into account US Sellers’ status as a debtor-in-possession in the Bankruptcy Case and Canadian Seller’s status as a debtor in the Canadian Proceedings, to carry on in the Ordinary Course of Business (including by paying all fees due to any regulatory authority in the Ordinary Course of Business, including all fees due to the FDA or Health Canada prior to Closing), to maintain in full force and effect the Permits, to maintain and preserve the Acquired Assets in their present condition, other than reasonable wear and tear, and to keep intact the business relationships relating to the Acquired Assets; and, without limiting the generality of the forgoing, (b) Sellers shall not: (i) other than the sale of Products in accordance with Section 7.2(b)(vii) or pursuant to any debtor-in-possession financing or cash collateral agreement or order, sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or voluntarily impose or suffer to be imposed, any Encumbrance (other than Assumed Liabilities and Permitted Encumbrances) on any Acquired Asset; (ii) issue, deliver or sell or authorize the issuance, delivery or sale of, any membership or other equity interests of Sellers; (iii) fail to pay any maintenance or similar fees in connection with the prosecution and maintenance of applicable Registered Business Intellectual Property that is material to the Business as currently conducted, or otherwise fail to protect and maintain Registered Business Intellectual Property that is material to the Business as currently conducted consistent with past practice in all material respects; (iv) amend any of the Assigned Agreements or any Contract included in the Acquired Assets other than non-material amendments made in the Ordinary Course of Business; (v) other than in the Ordinary Course of Business, enter into any new, or amend any existing, license or other similar agreement concerning any Business Intellectual Property material to the Business, taken as a whole; (vi) except in the Ordinary Course of Business, cancel or compromise any material claim or waive or release any material right, in each case, that is a claim or right related to an Acquired Asset; (vii) sell more than 3,300 units of Zyclara Products in the aggregate (including all strengths and methods of delivery) in any given week or materially increase the sale of other Products outside of the Ordinary Course of Business; or (viii) enter into any agreement or commitment to take any action prohibited by this Section 7.2. Without in any way limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that (i) nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the operations of Sellers, or the Business prior to the Closing and (ii) prior to the Closing, Sellers shall exercise, consistent with, and subject to, the terms and conditions of this Agreement, complete control and supervision over the Business and their operations. Notwithstanding anything herein to the contrary, Sellers shall be permitted to take all actions that are necessary or desirable to comply with the WARN Act, including without limitation, providing any notices required under the WARN Act, and no such actions shall constitute a violation of this Section 7.2. Notwithstanding anything herein to the contrary, after the Effective Date and prior to the Closing Date, Sellers shall not make any offer to sell or distribute, and shall not sell or distribute, any Product that has not been sold by Sellers prior to the Effective Date.

Operations Prior to the Closing Date. Sellers covenant and agree that, except (i) as expressly contemplated by this Agreement, (ii) as disclosed in Schedule 7.2 or any other Schedule as of the date hereof7.2, (iii) for the failure to pay or otherwise honor (A) Rebates, Chargebacks and return obligations relating to Products sold by Sellers prior to the Filing or (B) any patient coupon program, (iv) with the prior written consent of Buyer (which consent consent, other than with respect to Section 7.2(b)(ii), shall not be unreasonably withheld or delayed), (viv) as required by, arising out of, relating to or resulting from the Bankruptcy Case, the Canadian Proceedings or otherwise approved by the Bankruptcy Court or the Canadian Court and (viv) as otherwise required by LawsLaw, after the Effective Date and prior to the Closing Date: (a) Sellers shall use commercially reasonable efforts, taking into account US Sellers’ status as a debtordebtors-in-possession in the Bankruptcy Case and Canadian Seller’s status as a debtor in the Canadian ProceedingsCase, to carry on in the Ordinary Course of Business (including by paying all fees due to any regulatory authority in the Ordinary Course of Business, including all fees due to the FDA or Health Canada prior to Closing), to maintain in full force and effect the Permits, to maintain and preserve the Acquired Assets in their present conditioncondition (including by using its reasonable best efforts to renew any Assigned Agreements that come up for renewal in the Ordinary Course of Business), other than reasonable wear and teartear and sales of Inventory in the Ordinary Course of Business, and to keep intact the business relationships relating to the Acquired Stores and the Acquired Assets; and, without limiting the generality of the forgoingforegoing, (b) Sellers shall not: (i) other than the sale of Products Inventory in accordance with Section 7.2(b)(vii) the Ordinary Course of Business, any Permitted Inventory Reduction or pursuant to any debtor-in-possession financing or cash collateral agreement or order, sell, lease (as lessor), transfer (including the transfer from an Acquired Store to a non-Acquired Store) or otherwise dispose of, or mortgage or pledge, or voluntarily impose or suffer to be imposed, imposed any Encumbrance (other than Assumed Liabilities and Permitted Encumbrances) on on, any Acquired Asset; (ii) issueamend, deliver modify, terminate, waive any rights under or sell or authorize the issuancecreate any Encumbrance with respect to, delivery or sale of, any membership or other equity interests of Sellers; (iii) fail to pay any maintenance or similar fees in connection with the prosecution and maintenance of applicable Registered Business Intellectual Property that is material to the Business as currently conducted, or otherwise fail to protect and maintain Registered Business Intellectual Property that is material to the Business as currently conducted consistent with past practice in all material respects; (iv) amend any of the Assigned Agreements or otherwise take any Contract included actions not required by the terms of any Assigned Agreement that would result in the Acquired Assets other than non-material amendments any increase in any payments to be made in the Ordinary Course of Businessunder such Assigned Agreement; (v) other than in the Ordinary Course of Business, enter into any new, or amend any existing, license or other similar agreement concerning any Business Intellectual Property material to the Business, taken as a whole; (viiii) except in the Ordinary Course of Business, cancel or compromise any material claim or waive or release any material right, in each case, that is a claim or right related to an Acquired Asset; (vii) sell more than 3,300 units of Zyclara Products in the aggregate (including all strengths and methods of delivery) in any given week or materially increase the sale of other Products outside of the Ordinary Course of Business; or (viiiiv) enter into any agreement or commitment to take any action prohibited by this Section 7.2. . (c) Sellers shall cause each Acquired Store to have a sufficient amount of ▇▇▇▇▇ Cash as of the Closing to conduct its operations in the Ordinary Course of Business following the Closing. (d) Sellers shall use their reasonable best efforts to cause the level, composition and mix of Inventory at each Acquired Store to be consistent with the Projected Inventory for such Acquired Store and the saleable condition of such Inventory as of the Closing to be consistent with the saleable condition of such Inventory as of the date of this Agreement. (e) Without in any way limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that (i) nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the operations of Sellers, Sellers or the Business prior to the Closing and (ii) prior to the Closing, Sellers shall exercise, consistent with, and subject to, the terms and conditions of this Agreement, complete control and supervision over the Business and their operationsoperations to the extent permitted by Law, including taking into account Sellers’ status as debtors-in-possession in the Bankruptcy Case. Notwithstanding anything herein to the contrary, Sellers shall be permitted to take all actions that are necessary or desirable to comply with the Worker Adjustment and Retraining Notification Act and WARN Act, including without limitation, providing any notices required under the WARN Act, and no such actions shall constitute a violation of this Section 7.2. Notwithstanding anything herein to the contrary, after the Effective Date and prior to the Closing Date, Sellers shall not make any offer to sell or distribute, and shall not sell or distribute, any Product that has not been sold by Sellers prior to the Effective Date.

Operations Prior to the Closing Date. Sellers covenant and agree that, except (i) as expressly contemplated by this Agreement, (ii) as disclosed in Schedule 7.2 or any other Schedule as of the date hereof, (iii) for the failure to pay or otherwise honor (A) Rebates, Chargebacks and return obligations relating to Products sold by Sellers prior to the Filing or (B) any patient coupon program, (iv) with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), (v) as required by, arising out of, relating to or resulting from the Bankruptcy Case, the Canadian Proceedings or otherwise approved by the Bankruptcy Court or the Canadian Court and (vi) as otherwise required by Laws, after the Effective Date and prior to the Closing Date: (a) Sellers shall use commercially reasonable efforts, taking into account US Sellers’ status as a debtor-in-possession in the Bankruptcy Case and Canadian Seller’s status as a debtor in the Canadian Proceedings, to carry on in the Ordinary Course of Business (including by paying all fees due to any regulatory authority in the Ordinary Course of Business, including all fees due to the FDA or Health Canada prior to Closing), to maintain in full force and effect the Permits, to maintain and preserve the Acquired Assets in their present condition, other than reasonable wear and tear, and to keep intact the business relationships relating to the Acquired Assets; and, without limiting the generality of the forgoing,, CH\1318529.5 (b) Sellers shall not: (i) other than the sale of Products in accordance with Section 7.2(b)(vii) or pursuant to any debtor-in-possession financing or cash collateral agreement or order, sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or voluntarily impose or suffer to be imposed, any Encumbrance (other than Assumed Liabilities and Permitted Encumbrances) on any Acquired Asset; (ii) issue, deliver or sell or authorize the issuance, delivery or sale of, any membership or other equity interests of Sellers; (iii) fail to pay any maintenance or similar fees in connection with the prosecution and maintenance of applicable Registered Business Intellectual Property that is material to the Business as currently conducted, or otherwise fail to protect and maintain Registered Business Intellectual Property that is material to the Business as currently conducted consistent with past practice in all material respects; (iv) amend any of the Assigned Agreements or any Contract included in the Acquired Assets other than non-material amendments made in the Ordinary Course of Business; (v) other than in the Ordinary Course of Business, enter into any new, or amend any existing, license or other similar agreement concerning any Business Intellectual Property material to the Business, taken as a whole; (vi) except in the Ordinary Course of Business, cancel or compromise any material claim or waive or release any material right, in each case, that is a claim or right related to an Acquired Asset; (vii) sell more than 3,300 units of Zyclara Products in the aggregate (including all strengths and methods of delivery) in any given week or materially increase the sale of other Products outside of the Ordinary Course of Business; or (viii) enter into any agreement or commitment to take any action prohibited by this Section 7.2. Without in any way limiting any Party’s rights or obligations under this Agreement, the Parties understand and agree that (i) nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the operations of Sellers, or the Business prior to the Closing and (ii) prior to the Closing, Sellers shall exercise, consistent with, and subject to, the terms and conditions of this Agreement, complete control and supervision over the Business and their operations. Notwithstanding anything herein to the contrary, Sellers shall be permitted to take all actions that are necessary or desirable to comply with the WARN Act, including without CH\1318529.5 limitation, providing any notices required under the WARN Act, and no such actions shall constitute a violation of this Section 7.2. Notwithstanding anything herein to the contrary, after the Effective Date and prior to the Closing Date, Sellers shall not make any offer to sell or distribute, and shall not sell or distribute, any Product that has not been sold by Sellers prior to the Effective Date.