Common use of Pre-Closing Clause in Contracts

Pre-Closing. Between the date of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed: (i) Seller shall use its best efforts to cause the Operator to operate the Facility diligently, in accordance with the Operator’s obligations under its lease or other arrangement with Seller, and only in the ordinary course of business and consistent with past practice. (ii) Seller shall use its best efforts to prevent the Operator from making any material change in the operation of the Facility, and shall prevent the Operator from selling or agreeing to sell any items of machinery, equipment or other assets of the Facility, or otherwise entering into any agreement affecting the Facility, except in the ordinary course of business; (iii) Seller shall use its best efforts to prevent the Operator from entering into any Lease or Contract or commitment affecting the Facility, except for Leases or Contracts entered into in the ordinary course of business; (iv) During normal business hours and consistent with Section 6(c) herein, Seller shall provide Buyer or its designated representative with access to the Facility upon prior notification and coordination with Seller and the Operator; provided, Buyer shall not materially interfere with the operation of the Facility. At such times Seller and the Operator shall permit Buyer to inspect the books and records of the Facility; (v) Within five (5) business days following the execution of this Agreement by the parties, Seller shall deliver to Buyer the due diligence items described on the Due Diligence List attached hereto as Schedule 6(a)(vii) (the “Due Diligence Items”); provided, in the event certain Due Diligence Items (“Unavailable Items”) are not readily accessible to Seller, Seller may identify the Unavailable Items by written notice to Buyer within such five (5) business day period and shall use its best efforts to deliver all Unavailable Items to Buyer as promptly as possible, but in no event more than ten (10) business days following the execution of this Agreement. If Buyer requests additional items not included on Schedule 6(a)(vii), it will do so by written request delivered by Seller and Seller will use its best efforts to provide such information within five (5) business days within receipt of the request; and, provided further, Seller shall continue to cause Operator to deliver to Buyer, following the expiration of the Due Diligence Period, financial reports showing, among other things, the EBITDAR (defined below) for the Facility for the trailing twelve (12) month annualized operations for any given period. The term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (reserves meaning additions to capital reserves).”

Pre-Closing. Between the date of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed: (i) Seller shall use its best efforts to cause the Operator to operate the Facility diligently, in accordance with the Operator’s obligations under its lease or other arrangement with Seller, and only in the ordinary course of business and consistent with past practice. (ii) Seller shall use its best efforts to prevent the Operator from making any material change in the operation of the any Facility, and shall prevent the Operator from selling not sell or agreeing agree to sell any items of machinery, equipment or other assets of the Facility, or otherwise entering into any agreement affecting the any Facility, except in the ordinary course of business; (iii) Seller shall use its best efforts to prevent the Operator from entering not enter into any Lease or Contract or commitment affecting the any Facility, except for Leases or Contracts entered into in the ordinary course of business; (iv) During normal business hours and consistent with Section 6(c) herein, Seller shall provide Buyer or its designated representative with access to the Facility upon prior notification and coordination with Seller and the OperatorSeller; provided, Buyer shall not materially interfere with the operation of the any Facility. At such times Seller and the Operator shall permit Buyer to inspect the books and records of the Facility; (v) Within five (5) business days following the execution of this Agreement by the parties, Seller shall deliver to Buyer the due diligence items described on the Due Diligence List attached hereto as Schedule 6(a)(vii10(a)(v) (the “Due Diligence Items”); provided, in the event certain Due Diligence Items (“Unavailable Items”) are not readily accessible to Seller, Seller may identify the Unavailable Items by written notice to Buyer within such five (5) business day period and shall use its best efforts to deliver all Unavailable Items to Buyer as promptly as possible, but in no event more than ten (10) business days following the execution of this Agreement. If Buyer requests additional items not included on Schedule 6(a)(vii10(a)(v), it will do so by written request delivered by Seller and Seller will use its best efforts to provide such information within five (5) business days within receipt of the request; and, provided further, Seller shall continue to cause Operator to deliver to Buyer, following the expiration of the Due Diligence Period, financial reports showingreports. (vi) Seller shall not move residents from the Facility, among except (a) to any other thingsFacility which is owned by Seller and constitutes part of the Property as defined herein, (b) for health treatment purposes or otherwise at the EBITDAR request of the resident, family member or other guardian or (defined belowc) upon court order or the request of any governmental authority having jurisdiction over the Facility; (vii) Seller shall use commercially reasonable efforts to retain the services and goodwill of the employees of the Seller until the Closing; (viii) Seller shall maintain in force the existing hazard and liability insurance policies, or comparable coverage, for the Facility as are in effect as of the date of this Agreement; (ix) Seller shall file all returns, reports and filings of any kind or nature, including but not limited to, cost reports referred to in this Agreement, required to be filed by Seller on a timely basis and shall timely pay all taxes or other obligations and liabilities or recoupments which are due and payable with respect to the Facility in the ordinary course of business with respect to the periods Seller operated the Facility; (x) Seller shall (a) to maintain all required operating licenses in good standing, (b) to operate the Facility in accordance with its current business practices and (c) to promptly notify Buyer in writing of any notices of material violations or investigations received from any applicable governmental authority; (xi) Seller shall use make all customary repairs, maintenance and replacements required to maintain the Facility in substantially the same condition as on the date of Buyer’s inspection thereof, ordinary wear and tear excepted; (xii) Seller shall promptly notify Buyer in writing of any Material Adverse Change, as defined herein, of which Seller becomes aware in the condition or prospects of the Facility including, without limitation, sending Buyer copies of all surveys and inspection reports of all governmental agencies received after the date hereof and prior to Closing, promptly following receipt thereof by the Seller. For purposes of this Agreement, a “Material Adverse Change” shall mean: (i) loss of licensure, or (ii) intentionally deleted, or (iii) any adverse action by a governmental agency which, with the passage of time, would reasonably be expected to materially affect in a negative manner licensure at any Facility, or any adverse action in any Facility which would reasonably be expected to materially affect in a negative manner such Facility’s participation or eligibility to participate in any Payor program, unless appropriate corrective action has been taken by Seller, in the ordinary course of business, or (iv) failure to settle with the appropriate governmental authority, or to satisfy on or before the Closing (either directly with such governmental authority or by funds escrowed by Seller for the trailing twelve (12such purposes) month annualized operations all claims for any given period. The term “EBITDAR” means “earnings before interestreimbursements, recoupments, taxes, depreciationfines or penalties which may be due to any governmental authority having jurisdiction over the Facility, amortization or (v) the occurrence of a title or survey defect occurring after the date of this Agreement which would reasonably be expected to adversely affect the ability of Buyer to operate the memory care facility at the Facility or to obtain financing for the Facility, or (vi) the commencement of any third party litigation which interferes with Seller’s ability to close the transactions contemplated by this Agreement, or (vii) any damage, destruction or condemnation affecting the Facility in which the estimate of damage exceeds $100,000 per Facility and rent such damage or destruction has not been repaired, or Buyer as not otherwise waived such condition prior to Closing. In the event of any occurrence described in clause (viii) above, Seller shall deliver a copy of the Plan of Correction or otherwise notify Buyer in writing of the planned action, and reserves (reserves meaning additions to capital reserves)such Plan of Correction or other corrective action which has been approved by the applicable regulatory agency or agencies.”

Pre-Closing. Between the date of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed: (i) Seller shall use its best efforts to cause the Operator to operate the Facility diligently, in accordance with the Operator’s obligations under its lease or other arrangement with Seller, and only in the ordinary course of business and consistent with past practicebusiness. (ii) Seller shall use its best efforts to prevent the Operator from making any material change in the operation of the Facility, and shall prevent the Operator from selling or agreeing to sell any items of machinery, equipment or other assets of the Facility, or otherwise entering into any agreement affecting the Facility, except in the ordinary course of business; (iii) Seller shall use its best efforts to prevent the Operator from entering into any Lease or Contract or commitment affecting the Facility, except for Leases or Contracts entered into in the ordinary course of business; (iv) During normal business hours and consistent with Section 6(c6(a) herein, Seller shall provide Buyer or its designated representative with access to the Facility upon prior notification and coordination with Seller and the Operator; provided, Buyer shall not materially interfere with the operation of the Facility. At such times Seller and the Operator shall permit Buyer to inspect the books and records of the Facility; (v) Within five (5) business days following the execution of this Agreement by the parties, Seller shall deliver has delivered or made available to Buyer the due diligence items described on all of the Due Diligence List attached hereto as Schedule 6(a)(vii) (the “Items which are in Seller’s possession or control. All Due Diligence Items”); provided, in Items which have not previously been delivered are identified as the event certain Due Diligence Unavailable Items (“Unavailable Items”) are not readily accessible ). If any of the Unavailable Items become available to Seller, Seller may identify the Unavailable Items by written notice to Buyer shall within such five (5) business day period and shall use its best efforts days of receiving such items, deliver such items to deliver all Unavailable Items to Buyer as promptly as possible, but in no event more than ten (10) business days following the execution of this AgreementBuyer. If Buyer requests additional items not included on Schedule 6(a)(vii), it will do so by written request in writing delivered by Buyer to Seller, Seller and Seller will shall use its best commercially reasonable efforts to provide such information within five (5) business days within of receipt of the request; and, and provided further, Seller shall continue to cause Operator to deliver to Buyer, Buyer following the expiration of the Due Diligence Period, financial reports showing, showing among other things, the things information necessary to determine EBITDAR (defined below) for the Facility for the trailing twelve six (126) month annualized operations for at any given periodtime. The term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (reserves meaning additions to capital reserves).”

Pre-Closing. Between the date of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed: (i) Seller shall use its best efforts to cause the Operator to operate the Facility diligently, in accordance with the Operator’s obligations under its lease or other arrangement with Seller, and only in the ordinary course of business and consistent with past practicebusiness. (ii) Seller shall use its best efforts to prevent the Operator from making any material change in the operation of the Facility, and shall prevent the Operator from selling or agreeing to sell any items of machinery, equipment or other assets of the Facility, or otherwise entering into any agreement affecting the Facility, except in the ordinary course of business; (iii) Seller shall use its best efforts to prevent the Operator from entering into any Lease or Contract or commitment affecting the Facility, except for Leases or Contracts entered into in the ordinary course of business; (iv) During normal business hours and consistent with Section 6(c) herein, Seller shall provide Buyer or its designated representative with access to the Facility upon prior notification and coordination with Seller and the Operator; provided, Buyer shall not materially interfere with the operation of the Facility. At such times Seller and the Operator shall permit Buyer to inspect the books and records of the Facility; (v) Within five (5) business days following the execution of this Agreement by the parties, Seller shall deliver to Buyer the due diligence items described on the Due Diligence List attached hereto as Schedule 6(a)(vii) (the “Due Diligence Items”); provided, in the event certain Due Diligence Items (“Unavailable Items”) are not readily accessible to Seller, Seller may identify the Unavailable Items by written notice to Buyer within such five (5) business day period and shall use its best efforts to deliver all Unavailable Items to Buyer as promptly as possible, but in no event more than ten (10) business days following the execution of this Agreement. If Buyer requests additional items not included on Schedule 6(a)(vii), it will do so by written request delivered by Seller and Seller will use its best efforts to provide such information within five (5) business days within receipt of the request; and, provided further, Seller shall continue to cause Operator to deliver to Buyer, following the expiration of the Due Diligence Period, financial reports showing, among other things, the EBITDAR (defined below) for the Facility for the trailing twelve (12) month annualized operations for any given period. The term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (reserves meaning additions to capital reserves).”

Pre-Closing. Between the date of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed: (i) Seller shall use its best efforts to cause the Operator to operate the Facility Facilities diligently, in accordance with the Operator’s obligations under its lease or other arrangement with Seller, and only in the ordinary course of business and consistent with past practicebusiness. (ii) Seller shall use its best efforts to prevent the Operator from making any material change in the operation of the any Facility, and shall prevent the Operator from selling or agreeing to sell any items of machinery, equipment or other assets of the any Facility, or otherwise entering into any agreement affecting the any Facility, except in the ordinary course of business; (iii) Seller shall use its best efforts to prevent the Operator from entering into any Lease or Contract or commitment affecting the any Facility, except for Leases or Contracts entered into in the ordinary course of business; (iv) During normal business hours and consistent with Section 6(c6(b) herein, Seller shall provide Buyer or its designated representative with access to the Facility Facilities upon prior notification and coordination with Seller and the Operator; provided, Buyer shall not materially interfere with the operation of the any Facility. At such times Seller and the Operator shall permit Buyer to inspect the books and records of the each Facility; (v) Within five (5) business days following the execution of this Agreement by the parties, Seller shall deliver has delivered to Buyer all of the due diligence items described on the Due Diligence List attached hereto as Schedule 6(a)(vii) (the “Due Diligence Items”); provided, ) which are in the event certain Seller’s possession or control. All Due Diligence Items which have not previously been delivered are identified as the Unavailable Items (“Unavailable Items”) are not readily accessible ). If any of the Unavailable Items become available to Seller, Seller may identify the Unavailable Items by written notice to Buyer shall within such five (5) business day period and shall use its best efforts days of receiving such items, deliver such items to deliver all Unavailable Items to Buyer as promptly as possible, but in no event more than ten (10) business days following the execution of this AgreementBuyer. If Buyer requests additional items not included on Schedule 6(a)(vii), it will do so by written request in writing delivered by Buyer to Seller, Seller and Seller will shall use its best efforts to provide such information within five (5) business days within of receipt of the request; and, and provided further, Seller shall continue to cause Operator to deliver to Buyer, Buyer following the expiration of the Due Diligence Period, financial reports showing, showing among other things, the things information necessary to determine EBITDAR (defined below) for each of the Facility facilities for the trailing twelve (12) month annualized operations for any given periodthe period ending February 28, 2012. The term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (reserves meaning additions to capital reserves).”

Pre-Closing. Between the date of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed: (i) Seller shall use its best commercially-reasonable efforts to cause the Operator to operate the Facility diligently, in accordance with the Operator’s obligations under its lease or other arrangement with Seller, and only in the ordinary course of business and consistent with past practicebusiness. (ii) Seller shall use its best commercially-reasonable efforts to prevent the Operator from making any material change in the operation of the Facility, and shall prevent the Operator from selling or agreeing to sell any items of machinery, equipment or other assets of the Facility, or otherwise entering into any agreement affecting the Facility, except in the ordinary course of business; (iii) Seller shall use its best commercially-reasonable efforts to prevent the Operator from entering into any Lease or Contract or commitment affecting the Facility, except for Leases or Contracts entered into in the ordinary course of business; (iv) During normal business hours hours, and consistent with subject to the requirements of Section 6(c) herein, Seller shall provide Buyer or its designated representative and Buyer’s Consultants with access to the Facility upon prior notification and coordination with Seller and the Operator; provided, Buyer shall not materially interfere with the operation of the Facility. At such times Seller and the Operator shall permit Buyer to inspect the books and records of the Facility; (v) Within five (5) business days following the execution of this Agreement by the parties, Seller shall deliver to Buyer the due diligence items described on the Due Diligence List attached hereto as Schedule 6(a)(vii) (the “Due Diligence Items”); provided, in the event certain Due Diligence Items (“Unavailable Items”) are not readily accessible to Seller, Seller may identify the Unavailable Items by written notice to Buyer within such five (5) business day period and shall use its best commercially-reasonable efforts to deliver all Unavailable Items to Buyer as promptly as possible, but in no event more than ten (10) business days following the execution of this Agreement. If Buyer requests additional items not included on Schedule 6(a)(vii), it will do so by written request delivered by Seller and Seller will use its best efforts to provide such information within five (5) business days within receipt of the request; and, provided further, Seller shall continue to cause Operator to deliver to Buyer, following the expiration of the Due Diligence Period, financial reports showing, among other things, the EBITDAR (defined below) for the Facility for the trailing twelve (12) month annualized operations for any given periodthe period ending April 30, 2012. The term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (reserves meaning additions to capital reserves).”

Pre-Closing. Between Except as otherwise set forth below, between the date of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed: (i) Seller shall use its best efforts to cause the Operator to operate the Facility diligently, in accordance with the Operator’s obligations under its lease or other arrangement with Seller, and only in the ordinary course of business and consistent with past practicebusiness. (ii) Seller shall use its best efforts to prevent the Operator from making any material change in the operation of the Facility, and shall prevent the Operator from selling or agreeing to sell any items of machinery, equipment or other assets of the Facility, or otherwise entering into any agreement affecting the Facility, except in the ordinary course of business; (iii) If Buyer approves the feasibility of the Property on or prior to the expiration of the Due Diligence Period, from and after the expiration of the Due Diligence Period, Seller shall use its best efforts to prevent the Operator from entering into any Lease or Contract or commitment affecting the Facility, except for Leases or Contracts entered into in the ordinary course of business; (iv) During normal business hours and consistent with Section 6(c) herein, Seller shall provide Buyer or its designated representative with access to the Facility upon prior notification and coordination with Seller and the Operator; provided, Buyer shall not materially interfere with the operation of the Facility. At such times Seller and the Operator shall permit Buyer to inspect the books and records of the Facility; (v) Within five (5) business days following the execution of this Agreement by the parties, Seller shall deliver to Buyer the due diligence items described on the Due Diligence List attached hereto as Schedule 6(a)(vii) (the “Due Diligence Items”); provided, in the event certain Due Diligence Items (“Unavailable Items”) are not readily accessible to Seller, Seller may identify the Unavailable Items by written notice to Buyer within such five (5) business day period and shall use its best efforts to deliver all Unavailable Items to Buyer as promptly as possible, but in no event more than ten (10) business days following the execution of this Agreement. If Buyer requests additional items not included on Schedule 6(a)(vii), it will do so by written request delivered by Seller and Seller will use its best efforts to provide such information within five (5) business days within receipt of the request; and, provided further, Seller shall continue to cause Operator to deliver to Buyer, following the expiration of the Due Diligence Period, financial reports showing, among other things, the EBITDAR (defined below) for the Facility for the trailing twelve six (126) month annualized operations for any given period. The term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (reserves meaning additions to capital reserves).”

Pre-Closing. Between the date of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed: (i) Seller shall use its best efforts to cause the Operator to operate the Facility Facilities diligently, in accordance with the Operator’s its obligations under its lease or other arrangement with Seller, and only in the ordinary course of business and consistent with past practice. (ii) Seller shall use its best efforts to prevent the Operator from making not make any material change in the operation of the any Facility, and shall prevent the Operator from selling not sell or agreeing agree to sell any items of machinery, equipment or other assets of the Facility, or otherwise entering enter into any agreement affecting the any Facility, except in the ordinary course of business; (iii) Seller shall use its best efforts to prevent the Operator from entering not enter into any Lease or Contract or commitment affecting the any Facility, except for Leases or Contracts entered into in the ordinary course of business; (iv) During normal business hours and consistent with Section 6(c) herein, Seller shall provide Buyer or its designated representative with access to the Facility upon prior notification and coordination with Seller and the OperatorSeller; providedas provided for herein, Buyer shall not materially interfere with the operation of the any Facility. At such times times, upon prior written notice, Seller and the Operator shall permit Buyer to inspect the books and records of the each Facility; (v) Within five (5) business days following the execution of this Agreement by the parties, Seller shall deliver to Buyer the due diligence items described on the Due Diligence List attached hereto as Schedule 6(a)(vii) (the “Due Diligence Items”); provided, in the event certain Due Diligence Items (“Unavailable Items”) are not readily accessible to Seller, Seller may identify the Unavailable Items by written notice to Buyer within such five (5) business day period and shall use its best efforts to deliver all Unavailable Items to Buyer as promptly as possible, but in no event more than ten (10) business days following the execution of this Agreement. If Buyer requests additional items not included on Schedule 6(a)(vii), it will do so by written request delivered by Seller and Seller will use its best efforts to provide such information within five (5) business days within receipt of the request; and, provided further, Seller shall continue to cause Operator to deliver to Buyer, following the expiration of the Due Diligence Period, financial reports showing, among other things, the EBITDAR (defined below) for the Facility Facilities for the trailing twelve (12) month annualized operations for any given period. The term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (reserves meaning additions to capital reserves)reserves and any capital expense.”

Pre-Closing. Between the date of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed: (i) Seller shall use its best efforts to cause the Operator to operate the Facility diligently, in accordance with the Operator’s obligations under its lease or other arrangement with Seller, and only in the ordinary course of business and consistent with past practice.business. PURCHASE AND SALE AGREEMENT Gateway / Summit Healthcare REIT, Inc. (ii) Seller shall use its best efforts to prevent the Operator from making any material change in the operation of the Facility, and shall prevent the Operator from selling or agreeing to sell any items of machinery, equipment or other assets of the Facility, or otherwise entering into any agreement affecting the Facility, except in the ordinary course of business; (iii) Seller shall use its best efforts to prevent the Operator from entering into any Lease or Contract or commitment affecting the Facility, except for Leases or Contracts entered into in the ordinary course of business; (iv) During normal business hours and consistent with Section 6(c6(a) herein, Seller shall provide Buyer or its designated representative with access to the Facility upon prior notification and coordination with Seller and the Operator; provided, Buyer shall not materially interfere with the operation of the Facility. At such times Seller and the Operator shall permit Buyer to inspect the books and records of the Facility; (v) Within five (5) business days following the execution of this Agreement by the parties, Seller shall deliver has delivered or make available to Buyer the due diligence items described on hard copies or scanned PDF files of all of the Due Diligence List attached hereto as Schedule 6(a)(vii) (the “Due Diligence Items”); provided, Items which are in the event certain Seller’s possession or control. All Due Diligence Items which have not previously been delivered are identified as unavailable items (“Unavailable Items”) are not readily accessible ). If any of the Unavailable Items become available to Seller, Seller may identify the Unavailable Items by written notice to Buyer shall within such five (5) business day period and shall use its best efforts days of receiving such items, deliver such items to deliver all Unavailable Items to Buyer as promptly as possible, but in no event more than ten (10) business days following the execution of this AgreementBuyer. If Buyer requests additional items not included on Schedule 6(a)(vii)items, it will do so by written request in writing delivered by Buyer to Seller, Seller and Seller will shall use its best commercially reasonable efforts to provide such information within five (5) business days within of receipt of the request; and, and provided further, Seller shall continue to cause Operator to deliver to Buyer, Buyer following the expiration of the Due Diligence Period, financial reports showing, showing among other things, the things information necessary to determine EBITDAR (defined below) for the Facility for the trailing twelve six (126) month annualized operations for at any given periodtime. The term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (reserves meaning additions to capital reserves).”

Pre-Closing. Between the date of this Agreement and the Closing Date, except as contemplated by this Agreement or with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed: (i) Seller shall operate the Facilities diligently or use its best efforts to cause the each Operator to operate the Facility Facilities diligently, in accordance with the Operator’s its obligations under its lease or other arrangement with Seller, and only in the ordinary course of business and consistent with past practice. (ii) Seller shall not make any material change in the operation of any Facility, or shall use its best efforts to prevent the Operator from making any material change in the operation of the any Facility, and shall not sell or agree to sell, or shall prevent the Operator from selling or agreeing to sell selling, any items of machinery, equipment or other assets of the Facility, or otherwise entering enter into any agreement affecting the any Facility, except in the ordinary course of business; (iii) Seller shall not enter, or shall use its best efforts to prevent the Operator from entering into any Lease or Contract or commitment affecting the any Facility, except for Leases or Contracts entered into in the ordinary course of business; (iv) During normal business hours and consistent with Section 6(c) herein, Seller shall provide Buyer or its designated representative with access to the Facility upon prior notification and coordination with Seller and the Operator; provided, Buyer shall not materially interfere with the operation of the any Facility. At such times times, Seller and and/or the Operator shall permit Buyer to inspect the books and records of the each Facility; (v) Within five (5) business days following the execution of this Agreement by the parties, Seller shall deliver to Buyer the due diligence items described on the Due Diligence List attached hereto as Schedule 6(a)(vii) (the “Due Diligence Items”); provided, in the event certain Due Diligence Items (“Unavailable Items”) are not readily accessible to Seller, Seller may identify the Unavailable Items by written notice to Buyer within such five (5) business day period and shall use its best efforts to deliver all Unavailable Items to Buyer as promptly as possible, but in no event more than ten (10) business days following the execution of this Agreement. If Buyer requests additional items not included on Schedule 6(a)(vii), it will do so by written request delivered by Seller and Seller will use its best efforts to provide such information within five (5) business days within receipt of the request; and, provided further, Seller shall continue to cause Operator to deliver to Buyer, following the expiration of the Due Diligence Period, financial reports showing, among other things, the EBITDAR (defined below) for the Facility Facilities for the trailing twelve (12) month annualized operations for any given period. The term “EBITDAR” means “earnings before interest, taxes, depreciation, amortization and rent and reserves (reserves meaning additions to capital reserves).”