Common use of Certain Covenants and Agreements Clause in Contracts

Certain Covenants and Agreements. 5.1 Conduct of Business prior to the Closing Date. Seller agrees that, except as expressly set forth in this Agreement or on Schedule 5.1 or approved by Buyer in writing, from the date of this Agreement through, and including, the Closing Date: (a) The NOARK Group and Seller and its Affiliates, as applicable, shall operate the Business in the ordinary course of business including with respect to the collection of receivables and payment of payables, and Seller, its Affiliates and the NOARK Group, as applicable, will use all reasonable efforts to preserve intact their relationships with their customers, suppliers, distributors, employees and other Persons having commercially beneficial relationships with any member of the NOARK Group in the ordinary course of business; (b) No change shall be made in the certificate of formation, partnership agreement, limited liability company operating agreement, members’ agreement or any other organizational document of any of the members of the NOARK Group; (c) No change shall be made in the number or dollar amount of authorized or issued equity interests of the members of the NOARK Group; nor shall any option, warrant, call, right, commitment, conversion right, right of first refusal, or agreement of any character be granted or made by Seller or a member of the NOARK Group relating to the authorized or issued equity interests of any member of the NOARK Group; nor shall a member of the NOARK Group issue, grant or sell any securities or obligations convertible into equity interests in a member of the NOARK Group; (d) No member of the NOARK Group shall incur any Indebtedness (other than trade payables incurred in the ordinary course of business) or make any loans, advances or capital contributions to, or investments in, any other Person; (e) No member of the NOARK Group, nor Seller or any of its Affiliates, shall (i) increase the compensation payable or to become payable to any Subject Employee, officer or director thereof except in the ordinary course of business as part of regular annual reviews, or increase any bonus plan or other employee benefit plan, or (ii) commit itself to any additional pension, profit-sharing, bonus, incentive, deferred compensation, equity interest purchase, equity interest option, equity interests appreciation right, severance pay, retirement or other employee benefit plan, agreement or arrangement, or to any material employment or consulting agreement with or for the benefit of any Person, or (iii) hire any Person to perform services with regard to the Business or terminate the employment of any Subject Employee unless such hire or termination is consistent with past practices, is undertaken in the ordinary course of business and, in the reasonable opinion of Seller or its Affiliates, as applicable, is necessary for the orderly continuation of the Business; (f) No member of the NOARK Group shall acquire or sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its material assets or properties, except for acquisitions or sales of inventory by the Ozark Gas Companies in the ordinary course of business to their respective customers; (g) Except as required by the provisions of any Material Contract or as required by applicable Law, no member of the NOARK Group shall make any capital expenditures that are in excess of $200,000, in the aggregate, per month; (h) No member of the NOARK Group shall settle, cancel, compromise, release or provide a waiver with respect to any claim, action or proceeding existing on or commenced after the date of this Agreement and involving more than $500,000 in the aggregate other than those claims, actions and proceedings set forth on Schedule 5.1(h); (i) No member of the NOARK Group shall merge or consolidate with, or acquire any or all of the securities (other than transactions involving marketable securities) or assets of, any other Person; (j) No member of the NOARK Group shall grant or consent to any Lien on any of the properties or assets of the NOARK Group; (k) No member of the NOARK Group shall make, amend, rescind or revoke any material election, with respect to, or compromise any claim or proceeding relating to, Taxes, and no member of the NOARK Group shall change its accounting or Tax practices or policies, except where required to do so by GAAP, RAP or Law. (l) No member of the NOARK Group shall enter into any transaction with any Affiliate of any such Person, except for services necessary for and in the ordinary course of business; (m) No member of the NOARK Group shall make any amendment or terminate any Material Contract or waive any rights or provisions thereunder, except for immaterial amendments or waivers in the ordinary course of business; (n) No member of the NOARK Group shall enter into any contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the NOARK Group to compete with or conduct any business or line of business in any geographic area; (o) No member of the NOARK Group shall (i) obtain any guarantee, security or credit support from Seller, any of its Affiliates (other than the NOARK Group) or any other Person, or (ii) issue any guarantee, security or credit support to Seller, any of its Affiliates (other than the NOARK Group), or any other Person; and (p) Neither Seller nor any member of the NOARK Group shall agree to do any of the foregoing.

Certain Covenants and Agreements. 5.1 Conduct of Business prior to the Closing Date. Seller The Company hereby covenants and agrees that, except as expressly set forth in this Agreement or on Schedule 5.1 or approved by Buyer in writing, from the date of this Agreement through, and including, the Closing Date: (a) The NOARK Group and Seller and its Affiliates, as applicable, shall operate without the Business in the ordinary course of business including with respect to the collection of receivables and payment of payables, and Seller, its Affiliates and the NOARK Group, as applicable, will use all reasonable efforts to preserve intact their relationships with their customers, suppliers, distributors, employees and other Persons having commercially beneficial relationships with any member prior written consent of the NOARK Group in the ordinary course of business; Trustee, it shall not vote or consent or take any other action to: (bi) No change shall be made in the certificate of formation, amend or terminate any partnership agreement, limited liability company operating agreement, members’ agreement certificate of incorporation, by-laws or other constitutive documents of any Issuer in any way that changes the rights of the Company with respect to any Pledged Equity Interests or adversely affects the validity, perfection or priority of the Trustee's security interest therein and, without limiting the foregoing, no such amendment or termination shall be made unless the Company provides at least 30 days' prior written notice of such proposed amendment or termination to the Trustee, (ii) permit any issuer of any Pledged Equity Interest to issue to any Person other than the Company any additional stock, partnership interests, limited liability company interests or other equity interests of any nature or to issue securities convertible into or granting the right of purchase or exchange for any stock or other equity interest of any nature of such Issuer, (iii) other than as permitted under the Indenture or this Agreement, permit any Issuer to dispose of all or a material portion of its assets or (iv) waive any default under or breach of any terms, in each case which would adversely affect the validity, perfection or priority of the Trustee's security interest hereunder, of any constitutive document relating to the issuer of any Pledged Equity Interest; (b) without the prior written consent of the Trustee, it shall not permit any Issuer to merge or consolidate unless (i) at least 10 days' prior written notice thereof is provided to the Trustee and (ii) all the outstanding capital stock or other equity interests of the surviving or resulting corporation, limited liability company, partnership or other entity is, upon such merger or consolidation, pledged hereunder and no cash, securities or other property is distributed in respect of the outstanding equity interests of any other organizational document of any of the members of the NOARK Groupconstituent Person; (c) No change shall be made in the number or dollar amount of authorized or issued equity interests event that it acquires rights in any Pledged Equity Interests after the date hereof, it shall (A) cause each such Pledged Equity Interest to be represented by a Security Certificate (as defined in Section 8-102(a)(16) of the members UCC) in registered form (the transfer of which may be registered upon books maintained by the Issuer thereof), and such Security Certificate shall by its terms (as evidenced by a legend attached to such Security Certificate and, in the case of an Issuer that is a partnership or a limited liability company, in the organizational documents pursuant to which such Equity Interest is issued) expressly provide that it is a security governed by Article 8 of the NOARK GroupUCC, (B) deliver to the Trustee such Security Certificates and file appropriate financing statements that are necessary to perfect the security interest granted in such Pledged Equity Interests and (C) deliver to the Trustee a completed Pledge Supplement with respect to such Pledged Equity Interests; nor shall any optionnotwithstanding the foregoing, warrantexcept in the case of a transaction contemplated by Section 4(k) hereof, call, right, commitment, conversion right, right of first refusal, or agreement of any character be granted or made by Seller or a member the security interest of the NOARK Group relating Trustee shall attach to all Pledged Equity Interest immediately upon the authorized or issued equity interests Company's acquisition of any member rights therein and shall not be affected by the failure of the NOARK Group; nor shall a member of the NOARK Group issue, grant or sell Company to deliver any securities or obligations convertible into equity interests in a member of the NOARK Groupsuch supplement; (d) No member in the event that the Company receives any dividends, interest or distributions on any Pledged Equity Interests, or any securities or other property upon the merger, consolidation, liquidation or dissolution of any Issuer, then (a) such dividends, interest or distributions and securities or other property shall be included in the definition of Collateral without, except in the case of a transaction contemplated by Section 4(k) hereof, further action and (b) the Company shall immediately take all steps, if any, necessary or advisable to ensure the validity, perfection, priority and, if applicable, control of the NOARK Group Trustee over the same, and pending any such action the Company shall incur any Indebtedness be deemed to hold such dividends, interest, distributions, securities or other property in trust for the benefit of the Trustee and shall segregate the same from all other property of the Company; notwithstanding the foregoing, (other than trade payables incurred 1) so long as no Event of Default shall have occurred and be continuing, the Company shall have the right to retain and utilize in its business all ordinary cash dividends and distributions paid in the ordinary normal course of businessthe business of the applicable Issuer; and (2) the Company shall have the right to apply, or make any loansavailable for application, advances all dividends or capital contributions to, or investments in, any other Person;distributions received by the Company which constitute Net Proceeds of a Principal Asset Sale to the payments required by Section 3.09 of the Indenture in the priority set forth therein. (e) No member of the NOARK Group, nor Seller or any it shall comply with all of its Affiliates, obligations under any partnership agreement or limited liability company agreement relating to Pledged Partnership Interests or Pledged LLC Interests and shall (i) increase the compensation payable or to become payable enforce all of its material rights with respect to any Subject Employee, officer or director thereof except in the ordinary course of business as part of regular annual reviews, or increase any bonus plan or other employee benefit plan, or (ii) commit itself to any additional pension, profit-sharing, bonus, incentive, deferred compensation, equity interest purchase, equity interest option, equity interests appreciation right, severance pay, retirement or other employee benefit plan, agreement or arrangement, or to any material employment or consulting agreement with or for the benefit of any Person, or (iii) hire any Person to perform services with regard to the Business or terminate the employment of any Subject Employee unless such hire or termination is consistent with past practices, is undertaken in the ordinary course of business and, in the reasonable opinion of Seller or its Affiliates, as applicable, is necessary for the orderly continuation of the BusinessInterests; (f) No it will defend the Pledged Equity Interests against the claims and demands of all Persons (other than holders of Permitted Liens) claiming an interest in any of the Pledged Equity Interests; except for Permitted Liens, it shall discharge or cause to be discharged all Liens on any or all of the Pledged Equity Interests and shall not permit additional Liens to be incurred on the Pledged Equity Interests; (g) without the prior written consent of the Trustee, it shall not withdraw as a partner or member of any Issuer if such withdrawal would materially and adversely affect the NOARK Group value of the Collateral; (h) it shall cause each Issuer to consent to the grant by the Company to the Trustee of a security interest in the Pledged Equity Interests issued by such Issuer and, without limiting the foregoing, to consent to the transfer of any such Pledged Partnership Interest or Pledged LLC Interest to the Trustee or its nominee following the occurrence and continuance of an Event of Default and to the substitution of the Trustee or its nominee as a partner in any partnership or as a member in any limited liability company with all the rights and powers related thereto; (i) so long as no Event of Default shall have occurred and be continuing: (i) except as otherwise provided in subsection (a) or (b) of this Section 4 or Section 8.01(a) hereof, the Company shall be entitled to exercise or refrain from exercising any and all voting and other consensual rights pertaining to the Pledged Equity Interests or any part thereof for any purpose not violating the terms of this Agreement or the Indenture; provided that the Company shall exercise or refrain from exercising any such right if the Trustee (which may act in its reasonable judgment or at the direction of the Holders of not less than a majority in aggregate principal amount of the then outstanding Notes) shall have notified the Company that such action would have a material adverse effect on the value of the Pledged Equity Interests or any part thereof; and provided further that the Company shall give the Trustee at least five (5) Business Days' prior written notice of the manner in which it intends to exercise, or the reasons for refraining from exercising, any such right; it being understood, however, that neither the voting by the Company of any Pledged Stock for, or the Company's consent to, the election of directors (or similar governing body) at a regularly scheduled annual or other meeting of stockholders or with respect to incidental matters at any such meeting, nor the Company's consent to or approval of any action otherwise permitted under this Agreement or the Indenture, shall be deemed to violate the terms of this Agreement within the meaning of this Section 4(i), and no notice of any such voting or consent need be given to the Trustee; and (ii) the Trustee shall promptly execute and deliver (or cause to be executed and delivered) to the Company all proxies, and other instruments as the Company may from time to time reasonably request for the purpose of enabling the Company to exercise voting and other consensual rights when and to the extent to which it is entitled to exercise such rights pursuant to clause (i) above; (j) upon the occurrence and during the continuance of an Event of Default: (i) all rights of the Company to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease, and all such rights shall thereupon become vested in the Trustee, which shall thereupon during any such period have the sole right to exercise such voting and other consensual rights; and (ii) in order to permit the Trustee to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto, the Company shall promptly execute and deliver (or cause to be executed and delivered) to the Trustee all proxies, orders and other instruments as the Trustee may from time to time reasonably request for any such purpose; (k) if the Company shall acquire Pledged Equity Interests referred to in clause (ii) of the definition of the term "Issuers" contained in Section 1 hereof, it shall, if it does not own directly all of the issued and outstanding Voting Stock of the Issuer of such Pledged Equity Interests, cause the Subsidiaries of the Company that own, directly or indirectly, such Voting Stock to become parties to this Agreement or a supplement hereto and to execute such other documents and instruments, and take such action, as shall be necessary to effect the pledge of and security interest in such Pledged Equity Interests provided for in this Agreement, and this Agreement, as so supplemented, may provide for changes hereto necessary if any such Pledged Equity Interests represent less than all of the outstanding Voting Stock of the Issuer; (l) it shall not, without the prior written consent of the Trustee, execute or file in any public office or consent to the execution of or filing of any enforceable financing statement or statements covering any or all of the Pledged Equity Interests, except financing statements filed or to be filed in favor of the Trustee, the Tranche B Trustee as secured party or any agent or holder of obligations under any New Credit Facility; (m) it shall give the Trustee prompt notice of any written claim relating to title to the Pledged Equity Interests of which it has actual knowledge; it shall deliver to Trustee a copy of each other written demand, notice or document received by it which could reasonably be expected to adversely affect the Trustee's interest in the Pledged Equity Interests promptly upon, but in any event within 5 Business Days after, its receipt thereof; (n) it shall, promptly upon obtaining actual knowledge of any action, suit or proceeding at law or in equity by or before any governmental authority pending or threatened against it with respect to the Pledged Equity Interests, which could reasonably be expected to result in a material adverse effect on such Pledged Equity Interests, the Issuer thereof or the Company, the value of such Pledged Equity Interests or the rights and remedies of the Trustee hereunder, or upon becoming aware of any failure to comply with the terms and conditions of any governmental approval applicable to the Company or any Issuer which could reasonably be expected to result in a material adverse effect on the Pledged Equity Interests, the Issuer thereof or the Company, the value of such Pledged Equity Interests or the rights and remedies of the Trustee hereunder, furnish to the Trustee a notice of such event describing the same in reasonable detail and, together with such notice or as soon thereafter as possible, a description of the action that the Company has taken and proposes to take with respect thereto; (o) it shall not (A) sell, assign, convey, transfer (by operation of law or otherwise) or otherwise dispose of, or agree consent to sellthe sale, assignment, conveyance, transfer or otherwise dispose of, other disposition of any of its material assets or propertiesPledged Equity Interest, except for acquisitions or sales of inventory as permitted by the Ozark Gas Companies in Indenture or the ordinary course of business Security Documents, or (B) create or suffer to their respective customers; (g) Except as required by the provisions of exist any Material Contract Lien upon or as required by applicable Law, no member of the NOARK Group shall make any capital expenditures that are in excess of $200,000, in the aggregate, per month; (h) No member of the NOARK Group shall settle, cancel, compromise, release or provide a waiver with respect to any claim, action or proceeding existing on or commenced after the date of this Agreement and involving more than $500,000 in the aggregate other than those claims, actions and proceedings set forth on Schedule 5.1(h); (i) No member of the NOARK Group shall merge or consolidate with, or acquire any or all of the securities (other than transactions involving marketable securities) or assets of, any other Person; (j) No member of the NOARK Group shall grant Pledged Equity Interest or consent to the creation or existence of any Lien on any of the properties or assets of the NOARK Group; (k) No member of the NOARK Group shall make, amend, rescind or revoke any material election, with respect to, or compromise any claim or proceeding relating to, Taxes, and no member of the NOARK Group shall change its accounting or Tax practices or policies, except where required to do so by GAAP, RAP or Law. (l) No member of the NOARK Group shall enter into any transaction with any Affiliate of any such PersonPledged Equity Interest, except for services necessary for the pledge, hypothecation and in security interest created by this Agreement, the ordinary course of business; (m) No member of Tranche B Pledge Agreement and the NOARK Group shall make other Security Documents or by any amendment or terminate any Material Contract or waive any rights or provisions thereunder, except for immaterial amendments or waivers in the ordinary course of business; (n) No member of the NOARK Group shall enter into any contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the NOARK Group to compete with or conduct any business or line of business in any geographic area; (o) No member of the NOARK Group shall (i) obtain any guarantee, security or credit support from Seller, any of its Affiliates (other than the NOARK Group) or any other Person, or (ii) issue any guarantee, security or credit support to Seller, any of its Affiliates (other than the NOARK Group), or any other PersonNew Credit Facility; and (p) Neither Seller nor it shall cause the Pledged Equity Interests to constitute at all times not less than the entire partnership, membership or other ownership interests of each Issuer, as applicable, and it shall not permit (i) any member partnership, membership or other ownership interest of any Issuer to be deemed an investment company security (as defined in Section 8-103(b) of the NOARK Group shall agree UCC) or (ii) any Issuer to do issue additional partnership, membership or other ownership interests at any time (whether or not certificated), except in any such case as contemplated by Section 4(k) of the foregoingthis Agreement.

Certain Covenants and Agreements. 5.1 Conduct (a) Disclosure of Transactions and Other Material Information. On or before 5:00 p.m., New York City time, on the second Business prior to the Closing Date. Seller agrees that, except as expressly set forth in this Agreement or on Schedule 5.1 or approved by Buyer in writing, from Day following the date of this Agreement, the Company shall issue a press release and file a Current Report on Form 8-K describing the terms of the transactions contemplated by this Agreement throughin the form required by the 1934 Act and attaching the material Transaction Documents (including, without limitation, this Agreement (and all schedules and exhibits to this Agreement) and the form of the Amended and Additional Restated Notes) as exhibits to such filing (including all attachments, the "8-K Filing"). From and after the filing of the 8-K Filing with the SEC, no Buyer shall be in possession of any material, nonpublic information received from the Company, any of its Subsidiaries or any of its respective officers, directors, employees or agents, that is not disclosed in the 8-K Filing. The Company shall not, and includingshall cause each of its Subsidiaries and its and each of their respective officers, directors, employees and agents, not to, provide the Investor with any material, nonpublic information regarding the Company or any of its Subsidiaries from and after the filing of the 8-K Filing with the SEC without the express written consent of the Investor. If the Investor has, or believes it has, received any such material, nonpublic information regarding the Company or any of its Subsidiaries, it may provide the Company with written notice thereof. The Company shall, within five (5) Trading Days of receipt of such notice, make public disclosure of such material, nonpublic information. In the event of a breach of the foregoing covenant by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees and agents, in addition to any other remedy provided herein or in the Transaction Documents, the Closing Date: (a) The NOARK Group and Seller and its AffiliatesInvestor shall have the right to make a public disclosure, as applicable, shall operate the Business in the ordinary course form of business including a press release, public advertisement or otherwise, of such material, nonpublic information without the prior approval by the Company, its Subsidiaries, or any of its or their respective officers, directors, employees or agents. The Investor shall not have any liability to the Company, its Subsidiaries, or any of its or their respective officers, directors, employees, stockholders or agents for any such disclosure. Subject to the foregoing, neither the Company, its Subsidiaries nor the Investor shall issue any press releases or any other public statements with respect to the collection transactions contemplated hereby; provided, however, that the Company shall be entitled, without the prior approval of receivables the Investor, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and payment contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that in the case of payables, and Seller, its Affiliates and clause (i) the NOARK Group, as applicable, will use all reasonable efforts to preserve intact their relationships with their customers, suppliers, distributors, employees and other Persons having commercially beneficial relationships Investor shall be consulted by the Company in connection with any member such press release or other public disclosure prior to its release). Without the prior written consent of the NOARK Group in Investor, neither the ordinary course of business; (b) No change shall be made in the certificate of formation, partnership agreement, limited liability company operating agreement, members’ agreement or any other organizational document of any of the members of the NOARK Group; (c) No change shall be made in the number or dollar amount of authorized or issued equity interests of the members of the NOARK Group; Company nor shall any option, warrant, call, right, commitment, conversion right, right of first refusal, or agreement of any character be granted or made by Seller or a member of the NOARK Group relating to the authorized or issued equity interests of any member of the NOARK Group; nor shall a member of the NOARK Group issue, grant or sell any securities or obligations convertible into equity interests in a member of the NOARK Group; (d) No member of the NOARK Group shall incur any Indebtedness (other than trade payables incurred in the ordinary course of business) or make any loans, advances or capital contributions to, or investments in, any other Person; (e) No member of the NOARK Group, nor Seller or any of its Affiliates, Subsidiaries or affiliates shall (i) increase disclose the compensation payable or to become payable to any Subject Employee, officer or director thereof except in the ordinary course of business as part of regular annual reviews, or increase any bonus plan or other employee benefit plan, or (ii) commit itself to any additional pension, profit-sharing, bonus, incentive, deferred compensation, equity interest purchase, equity interest option, equity interests appreciation right, severance pay, retirement or other employee benefit plan, agreement or arrangement, or to any material employment or consulting agreement with or for the benefit of any Person, or (iii) hire any Person to perform services with regard to the Business or terminate the employment of any Subject Employee unless such hire or termination is consistent with past practices, is undertaken in the ordinary course of business and, in the reasonable opinion of Seller or its Affiliates, as applicable, is necessary for the orderly continuation name of the Business; (f) No member of the NOARK Group shall acquire or sellInvestor in any filing, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose of, any of its material assets or properties, except for acquisitions or sales of inventory by the Ozark Gas Companies in the ordinary course of business to their respective customers; (g) Except as required by the provisions of any Material Contract or as required by applicable Law, no member of the NOARK Group shall make any capital expenditures that are in excess of $200,000, in the aggregate, per month; (h) No member of the NOARK Group shall settle, cancel, compromiseannouncement, release or provide a waiver with respect to any claim, action or proceeding existing on or commenced after the date of this Agreement and involving more than $500,000 in the aggregate other than those claims, actions and proceedings set forth on Schedule 5.1(h); (i) No member of the NOARK Group shall merge or consolidate with, or acquire any or all of the securities (other than transactions involving marketable securities) or assets of, any other Person; (j) No member of the NOARK Group shall grant or consent to any Lien on any of the properties or assets of the NOARK Group; (k) No member of the NOARK Group shall make, amend, rescind or revoke any material election, with respect to, or compromise any claim or proceeding relating to, Taxes, and no member of the NOARK Group shall change its accounting or Tax practices or policies, except where required to do so by GAAP, RAP or Lawotherwise. (l) No member of the NOARK Group shall enter into any transaction with any Affiliate of any such Person, except for services necessary for and in the ordinary course of business; (m) No member of the NOARK Group shall make any amendment or terminate any Material Contract or waive any rights or provisions thereunder, except for immaterial amendments or waivers in the ordinary course of business; (n) No member of the NOARK Group shall enter into any contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the NOARK Group to compete with or conduct any business or line of business in any geographic area; (o) No member of the NOARK Group shall (i) obtain any guarantee, security or credit support from Seller, any of its Affiliates (other than the NOARK Group) or any other Person, or (ii) issue any guarantee, security or credit support to Seller, any of its Affiliates (other than the NOARK Group), or any other Person; and (p) Neither Seller nor any member of the NOARK Group shall agree to do any of the foregoing.

Certain Covenants and Agreements. 5.1 Conduct of Business prior to by the Companies. From the date hereof until the Closing Date. Seller agrees that, each of the Companies shall, except as expressly set forth required in connection with the transactions contemplated by this Agreement or on Schedule 5.1 or approved and except as otherwise consented to in writing by Buyer in writing, from the date of this Agreement through, and including, the Closing DatePurchasers: (a) The NOARK Group conduct its businesses in the ordinary course on a basis consistent with past practice and Seller and its Affiliatesnot engage in any new line of business or enter into any agreement, as applicable, shall operate transaction or activity or make any commitment with respect to the Business or the Assets except those in the ordinary course of business including with respect to the collection of receivables and payment of payables, and Seller, its Affiliates and the NOARK Group, as applicable, will use all reasonable efforts to preserve intact their relationships with their customers, suppliers, distributors, employees and other Persons having commercially beneficial relationships with any member of the NOARK Group in the ordinary course of businessnot otherwise prohibited under this Section 5.1; (b) No change shall be made in use its reasonable best efforts to preserve intact the certificate goodwill and business organization of formationsuch Company, partnership agreementkeep the employees of such Company available to the Purchasers and preserve the relationships and goodwill of such Company with clients, limited liability company operating agreementvendors, members’ agreement or any other organizational document of any of the members of the NOARK Groupsuppliers, employees and others having business relations with such Company; (c) No change shall be made maintain its existence and good standing in its jurisdiction of organization and in each jurisdiction in which the number ownership or dollar amount leasing of authorized its property or issued equity interests the conduct of the members of the NOARK Group; nor shall any option, warrant, call, right, commitment, conversion right, right of first refusal, or agreement of any character be granted or made by Seller or a member of the NOARK Group relating to the authorized or issued equity interests of any member of the NOARK Group; nor shall a member of the NOARK Group issue, grant or sell any securities or obligations convertible into equity interests in a member of the NOARK Groupits business requires such qualification; (d) No member of the NOARK Group shall incur duly and timely file or cause to be filed all reports and returns required to be filed with any Indebtedness (other than trade payables incurred Governmental Entity and promptly pay or cause to be paid when due all Taxes, including interest and penalties levied or assessed, unless diligently contested in the ordinary course of business) or make any loans, advances or capital contributions to, or investments in, any other Persongood faith by appropriate proceedings; (e) No member not amend or modify its charter or constitutional documents in any matter that could be adverse to the Purchasers or that could affect the transactions contemplated by this Agreement; (f) not dispose of or permit to lapse any rights to the use of any patent, trademark, trade name, service xxxx, license or copyright of such Company, including, without limitation, any of the NOARK GroupCompany Intellectual Property, nor Seller or dispose of or disclose to any Person, any trade secret, formula, process, technology or know-how of its Affiliates, shall such Company not heretofore a matter of public knowledge; (g) not (i) increase sell or transfer any assets, (ii) create, incur or assume any indebtedness secured by the compensation payable Assets, (iii) grant, create, incur or suffer to become payable to exist any Subject EmployeeLiens on the Assets which did not exist on the date hereof, officer (iv) incur any liability or director thereof obligation (absolute, accrued or contingent) except in the ordinary course of business as part of regular annual reviews, or increase any bonus plan or other employee benefit plan, or (ii) commit itself to any additional pension, profit-sharing, bonus, incentive, deferred compensation, equity interest purchase, equity interest option, equity interests appreciation right, severance pay, retirement or other employee benefit plan, agreement or arrangement, or to any material employment or consulting agreement with or for the benefit of any Person, or (iii) hire any Person to perform services with regard to the Business or terminate the employment of any Subject Employee unless such hire or termination is consistent with past practicespractice, is undertaken (v) write-off any guaranteed checks, notes or accounts receivable except in the ordinary course of business andconsistent with past practice, in (vi) write-down the reasonable opinion value of Seller any asset or its Affiliatesinvestment (including, as applicable, is necessary for the orderly continuation of the Business; (f) No member of the NOARK Group shall acquire or sell, transfer or otherwise dispose of, or agree to sell, transfer or otherwise dispose ofwithout limitation, any of its material assets the Assets) on the books or propertiesrecords of such Company, except for acquisitions or sales of inventory by the Ozark Gas Companies depreciation and amortization in the ordinary course of business to their respective customers; and consistent with past practice, (gvii) Except as required by the provisions of cancel any Material Contract debt or as required by applicable Lawwaive any claims or rights, no member of the NOARK Group shall (viii) make any commitment for any capital expenditures that are expenditure to be made on or after the Closing Date in excess of $200,000, in the aggregate, per month1,000 or (ix) enter into or amend any material contract or agreement; (h) No member not increase in any manner the base compensation or bonus opportunity of, enter into any new bonus or incentive agreement or arrangement with, or change any other employment terms (including any changes in titles or designations) of, any of the NOARK Group shall settleits employees, cancel, compromise, release directors or provide a waiver with respect to any claim, action or proceeding existing on or commenced after the date of this Agreement and involving more than $500,000 in the aggregate other than those claims, actions and proceedings set forth on Schedule 5.1(h)consultants; (i) No member not adopt, amend or terminate any Company Benefit Plan or increase the benefits provided under any Company Benefit Plan, adopt any plan that will be a Company Benefit Plan if adopted prior to the date hereof or promise or commit to undertake any of the NOARK Group shall merge or consolidate with, or acquire any or all of foregoing in the securities (other than transactions involving marketable securities) or assets of, any other Personfuture; (j) No member of the NOARK Group shall grant not amend or consent to terminate any Lien on existing employment, severance, termination, change in control, consulting, or other compensation agreement or enter into any of the properties new employment, severance, termination, change in control, consulting or assets of the NOARK Groupother compensation agreement; (k) No member of the NOARK Group shall makecontinue to extend clients credit, amend, rescind or revoke any material election, with respect to, or compromise any claim or proceeding relating to, Taxes, collect accounts receivable and no member of the NOARK Group shall change its accounting or Tax practices or policies, except where required to do so by GAAP, RAP or Law. (l) No member of the NOARK Group shall enter into any transaction with any Affiliate of any such Person, except for services necessary for pay accounts payable and similar obligations in the ordinary course of businessbusiness consistent with past practice; (l) perform in all material respects all of its obligations under all Company Contacts, and not default or suffer to exist any event or condition which with notice or lapse of time or both would constitute a default under any Company Contract; (m) No member maintain in full force and effect and in the same amounts policies of the NOARK Group shall make any amendment insurance comparable in amount and scope of coverage to that now maintained by or terminate any Material Contract or waive any rights or provisions thereunder, except for immaterial amendments or waivers on behalf of such Company; (n) continue to maintain its books and records consistent with such Company’s past practice; (o) continue its cash management practices in the ordinary course of business; (n) No member of the NOARK Group shall enter into any contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the NOARK Group to compete business consistent with or conduct any business or line of business in any geographic area; (o) No member of the NOARK Group shall (i) obtain any guarantee, security or credit support from Seller, any of its Affiliates (other than the NOARK Group) or any other Person, or (ii) issue any guarantee, security or credit support to Seller, any of its Affiliates (other than the NOARK Group), or any other Personpast practice; and (p) Neither Seller nor any member of the NOARK Group shall not authorize, or commit or agree to do take, any of the foregoing actions. In connection with the continued operation of the Business between the date hereof and the Closing Date, each Company will confer in good faith on a regular and frequent basis with one (1) or more representatives of the Purchasers designated in writing regarding operational matters and the general status of ongoing operations promptly and will notify the Purchasers of any event or occurrence that has had or may reasonably be expected to have an adverse effect on the assets, liabilities, results of operations, business or prospects of such Company. Not in limitation of the foregoing, in the event that either Company enters into any Contract (including any modification, amendment or supplement thereto or waiver thereunder) after the date hereof, the Companies shall deliver a copy of such Contract to the Purchasers within two (2) Business Days. Each Company acknowledges that the Purchasers do not and will not waive any rights it may have under this Agreement as a result of such consultations. Neither Company shall take any action that would, or that could reasonably be expected to, result in any of the representations and warranties of either of the Companies sets forth in this Agreement becoming untrue.