Common use of Conduct of Business By Holdings Clause in Contracts

Conduct of Business By Holdings. Holdings shall (i) engage in any business or (ii) own any material assets other than (a) the Capital Stock of Company and (b) Cash and Cash Equivalents or (iii) have any Indebtedness, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under the Guaranty or the Security Agreement and (b) customary indemnifications of officers and directors: THEN (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7 with respect to Company, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to Company, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii). In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided.

Conduct of Business By Holdings. Holdings shall (i) engage in any business other than entering into and performing its obligations under and in accordance with the Loan Documents and Related Agreements to which it is a party or (ii) own any material assets other than (a) the Capital Stock capital stock of Company and (b) Cash and Cash Equivalents or (iii) have in an amount not to exceed $100,000 at any Indebtedness, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under one time for the Guaranty or the Security Agreement and (b) customary indemnifications purpose of officers and directors: THEN paying general operating expenses of Holdings: (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7 with respect to Company8.7, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to Company, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided PROVIDED that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii). In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Collateral Account Agreement and shall be applied as therein provided.

Conduct of Business By Holdings. Holdings shall (i) engage in any business other than (a) the ownership of the Capital Stock of the Company and Arris, the payment of taxes and the provision of administrative services to the Company, Arris and their respective Subsidiaries in the ordinary course of business and of the type typical for holding companies similar to Holdings and (b) entering into and performing its obligations under and in accordance with the Loan Documents and Reorganization Documents to which it is a party, or (ii) own any material assets other than (a) the Capital Stock capital stock of Company and (b) Cash and Cash Equivalents or (iii) have any Indebtedness, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under the Guaranty or the Security Agreement and (b) customary indemnifications membership interests of officers and directorsArris: THEN (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7 with respect to Company8.7, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Companyeach Borrower, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue obtain the issuance of any Letter of Credit and the right of any Lender to issue enter into any Letter of Credit hereunder Guaranty shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to CompanyBorrowers, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue obtain the issuance of any Letter of Credit and the right of any Lender to issue enter into any Letter of Credit hereunder Guaranty shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii2.1A(ii). In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided. Notwithstanding anything contained in the second preceding paragraph, if at any time within 60 days after an acceleration of the Loans pursuant to clause (ii) of such paragraph Borrowers shall pay all arrears of interest and all payments on account of principal which shall have become due otherwise than as a result of such acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rates specified in this Agreement) and all Events of Default and Potential Events of Default (other than non-payment of the principal of and accrued interest on the Loans, in each case which is due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to Borrowers, may at their option rescind and annul such acceleration and its consequences; but such action shall not affect any subsequent Event of Default or Potential Event of Default or impair any right consequent thereon. The provisions of this paragraph are intended merely to bind Lenders to a decision which may be made at the election of Requisite Lenders and are not intended, directly or indirectly, to benefit Borrowers, and such provisions shall not at any time be construed so as to grant Borrowers the right to require Lenders to rescind or annul any acceleration hereunder or to preclude Administrative Agent or Lenders from exercising any of the rights or remedies available to them under any of the Loan Documents, even if the conditions set forth in this paragraph are met.

Conduct of Business By Holdings. Holdings shall (i) engage in any business or (ii) own any material assets other than (a) the Capital Stock of investments in Company and other Persons, and (b) Cash and Cash Equivalents or (iii) have any IndebtednessEquivalents; THEN, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under the Guaranty or the Security Agreement and (b) customary indemnifications of officers and directors: THEN (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7 with respect to Company, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal subject to the maximum amount that may at any time be drawn under all Letters terms, conditions and provisions of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), Orders and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shallmay, and upon the written request or with the written consent of Requisite Lenders, by written notice to CompanyCompany and without further order of or application to the Bankruptcy Court, the Administrative Agent shall (a) declare all or any portion of the amounts described in clauses (a) through (c) above Obligations to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii). In addition to 2.1A(ii) and (b) the other Administrative Agent and the Lenders may exercise all rights and remedies afforded that it may have under this Agreement, the other Loan Documents, the Orders, and applicable law with respect to Administrative Agent in this Section 8, upon the occurrence of an such Event of Default, provided that the Administrative Agent, on behalf Agent may not exercise any remedies against any Collateral unless it shall have given five (5) Business Days’ prior written notice to Company (with a copy to counsel for the Official Creditors’ Committee appointed in the any of the LendersCases, at and to the direction United States Trustee for the District in which the Cases are pending). In any hearing regarding any exercise of rights or remedies by the Administrative Agent or the Lenders hereunder or under any of the Required Lendersother Loan Documents, each Loan Party agrees that the only issue that may require that (I) Company Cash Collateralize be raised by any party in opposition thereto shall be whether, in fact, an Event of Default has occurred and is continuing, and the Letter each Loan Party hereby waives its right to seek relief, including, without limitation, under Section 105 of Credit Usage (in an amount equal the Bankruptcy Code, to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all extent such relief would in any way impair or restrict the rights and remedies available to it, of the Administrative Agent and the Lenders set forth herein and Issuing Lenders under in the other Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided.

Conduct of Business By Holdings. Trusts shall (i) engage in any business other than entering into and performing its obligations under and in accordance with the Related Agreements to which it is a party or (ii) own any assets other than (a) the membership interests of Holdings and (b) Cash and Cash Equivalents in an amount not to exceed $100,000 annually for the purpose of paying general operating expenses of Trusts. Holdings shall (i) engage in any business other than entering into and performing its obligations under and in accordance with the Loan Documents and Related Agreements to which it is a party or (ii) own any material assets other than (a) the Capital Stock membership interests of Company and (b) Cash and Cash Equivalents or (iii) have any Indebtedness, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under in an amount not to exceed $100,000 annually for the Guaranty or the Security Agreement and (b) customary indemnifications purpose of officers and directors: THEN paying general operating expenses of Holdings: (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7 with respect to Company8.7, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to Company, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the -------- foregoing shall not affect in any way the 109 obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of participations in any unpaid Swing Line Loans as provided in subsection 2.1A(iii). In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Collateral Account Agreement and shall be applied as therein provided. Notwithstanding anything contained in the second preceding paragraph, if at any time within 60 days after an acceleration of the Loans pursuant to clause (ii) of such paragraph Company shall pay all arrears of interest and all payments on account of principal which shall have become due otherwise than as a result of such acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rates specified in this Agreement) and all Events of Default and Potential Events of Default (other than non- payment of the principal of and accrued interest on the Loans, in each case which is due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to Company, may at their option rescind and annul such acceleration and its consequences; but such action shall not affect any subsequent Event of Default or Potential Event of Default or impair any right consequent thereon. The provisions of this paragraph are intended merely to bind Lenders to a decision which may be made at the election of Requisite Lenders and are not intended, directly or indirectly, to benefit Company, and such provisions shall not at any time be construed so as to grant Company the right to require Lenders to rescind or annul any acceleration hereunder or to preclude Administrative Agent or Lenders from exercising any of the rights or remedies available to them under any of the Loan Documents, even if the conditions set forth in this paragraph are met.

Conduct of Business By Holdings. Holdings shall (i) engage in any business other than entering into and performing its obligations incidental to, under and in accordance with the Loan Documents to which it is a party (which, for the avoidance of doubt, shall include the ability to make Restricted Junior Payments to the extent permitted by this Agreement) or related to or incidental to its ownership of Company or (ii) own any material assets other than (a) the Capital Stock of Company and Company, (b) Cash and Cash Equivalents or (iii) have any Indebtedness, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under the Guaranty or the Security Agreement and (bc) customary indemnifications assets incidental or related to its ownership of officers and directors: Company; THEN (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7 with respect to Holdings or Company, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to Company, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii). In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided.

Conduct of Business By Holdings. On or after the Qualified Holding Company Formation Date, Holdings shall (i) engage in any business other than entering into and performing its obligations under and in accordance with the Loan Documents, the Related Agreements, the Qualified Holding Company Formation Documents and any Qualified Reorganization Documents to which it is a party or (ii) own any material assets other than (a) the Capital Stock capital stock of Company Borrower, (b) the capital stock of Additives, (c) the capital stock of Management Company, (d) the capital stock of such other Subsidiaries permitted to be acquired pursuant to the Credit Agreement and (be) Cash and Cash Equivalents or (iii) have in an amount not to exceed $500,000 at any Indebtedness, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under one time for the Guaranty or the Security Agreement and (b) customary indemnifications purpose of officers and directors: THEN paying general operating expenses of Holdings: (i) upon the occurrence of any Event of Default described in subsection 8.6 or 8.7 with respect to Company8.7, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by CompanyBorrower, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to CompanyBorrower, declare all or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii). In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided.

Conduct of Business By Holdings. Holdings (a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing Date, HOLDINGS shall, other than implementing the exchange of HOLDINGS stock and options for AssureTec stock and options held by non-public holders, except to the extent that ELEMENT 21 shall otherwise consent in writing, carry on its business, in all material respects, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance with all applicable laws and regulations, pay its debts and Taxes when due subject to good faith disputes over such debts or Taxes, and pay or perform other material obligations when due and use its commercially reasonable efforts consistent with past practices and policies to (i) engage preserve intact its present business organization, (ii) keep available the services of its present officers and employees and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has business dealings. (b) In addition, except as permitted by the terms of this Agreement, without the prior written consent of ELEMENT 21, which consent will not be unreasonably withheld or delayed, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing Date, HOLDINGS shall not do any of the following and shall not permit its subsidiaries to do any of the following: (1) Accelerate, amend or change the period of exercisability of options or restricted stock, or re-price options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans; (2) Grant any severance or termination pay to any officer or employee except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing or made available to ELEMENT 21, or adopt any new severance plan; (3) Except as set forth in Section 4.3, declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock; (4) Issue, deliver, sell, authorize, pledge or otherwise encumber or propose any of the foregoing of, any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, other than the issuance delivery and/or sale of shares of HOLDINGS Common Stock pursuant to the exercise of stock options or warrants therefore outstanding as of the date of this Agreement; (5) Cause, permit or propose any amendments to its Articles of Incorporation or Bylaws; (6) Sell, lease, license, mortgage, encumber or subject to any lien or otherwise dispose of any properties or assets of HOLDINGS; (7) Create, incur or assume any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of HOLDINGS; (8) Adopt or amend any employee benefit plan or employee stock purchase or employee stock option plan, or enter into any employment contract or collective bargaining agreement, pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants other than in the ordinary course of business, consistent with past practice, or change in any material respect any management policies or procedures; (9) Make any individual or series of related payments outside of the ordinary course of business in excess of $10,000, other than banking, accounting, legal and printing fees associated with the Acquisition; (10) Except in the ordinary course of business, modify, amend or terminate any material contract or agreement to which HOLDINGS is a party or waive, release or assign any material rights or claims thereunder; (11) Materially revalue any of its assets or, except as required by GAAP, make any change in accounting methods, principles or practices; (12) Engage in any action that could reasonably be expected to cause the Acquisition to fail to qualify as a "reorganization" under Section 368(a)(1)(B) of the Code; (13) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person; (ii14) own Engage in any material assets other than action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement; or (a15) Agree in writing or otherwise to take any of the Capital Stock of Company and (b) Cash and Cash Equivalents or (iii) have any Indebtedness, Liens (other than Permitted Encumbrances) or Contingent Obligations other than (a) under the Guaranty or the Security Agreement and (b) customary indemnifications of officers and directors: THEN (i) upon the occurrence of any Event of Default actions described in subsection 8.6 or 8.7 with respect to Company, each of subsections (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default, Administrative Agent shall, upon the written request or with the written consent of Requisite Lenders, by written notice to Company, declare all or any portion of the amounts described in clauses (a1) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii). In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b14) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided.

Conduct of Business By Holdings. Pending the Merger. Prior to the Effective Time, unless the Company shall otherwise agree in writing (which agreement shall not be unreasonably withheld), or as otherwise expressly contemplated by this Agreement, including, without limitation, Article IV hereof, or as set forth in Section 5.2 of the Holdings Disclosure Schedule, Holdings shall conduct, and cause each of its Subsidiaries to conduct, its business only in the ordinary and usual course consistent in all material respects with past practice, and Holdings shall use, and cause each of its Subsidiaries to use, its reasonable efforts to preserve intact the present business organization, keep available the services of its present officers and key employees, and preserve their existing business relationships. Holdings shall promptly give the Company written notice of the existence or occurrence of any condition which might reasonably be expected to prevent the consummation of the transactions contemplated hereby. Without limiting the generality of the foregoing, unless the Company shall otherwise agree in writing (which agreement shall not be unreasonably withheld), or as otherwise expressly contemplated by this Agreement or as set forth in Section 5.2 of the Holdings Disclosure Schedule, prior to the Effective Time Holdings shall not, nor shall it permit any of its Subsidiaries to: (i) engage in any business except for the filing of the Holdings Charter and the Acquisition Charter, amend its Certificate of Incorporation, as amended, By-Laws or other organizational documents, (ii) own split, combine or reclassify any material assets shares of its outstanding capital stock unless all share numbers contained in or contemplated by this Agreement shall be correspondingly adjusted, (iii) declare, set aside or pay any dividend or other than distribution payable in cash, stock or property, or (aiv) directly or indirectly redeem or otherwise acquire any shares of its capital stock or shares of the Capital Stock capital stock of Company and any of its Subsidiaries; (b) Cash authorize for issuance, issue (except upon the exercise of outstanding stock options) or sell or agree to issue or sell any shares of, or rights to acquire or convertible into any shares of, its capital stock or shares of the capital stock of any of its Subsidiaries (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise), except for the granting of options to purchase up to a number of shares of Holdings Common Stock pursuant to any stock option plan equal to the number of outstanding Substitute Company Options with an exercise price above the Closing Price of the Company outstanding on the Effective Date divided by 0.275 and Cash Equivalents such options shall not exceed 150,000 without the consent of the Company, which consent shall not be unreasonably withheld. (c) (i) merge, combine or consolidate with another entity, (ii) acquire or purchase an equity interest in or a substantial portion of the assets of another corporation, partnership or other business organization or otherwise acquire any assets outside the ordinary course of business and consistent with past practice or otherwise enter into any material contract, commitment or transaction outside the ordinary course of business and consistent with past practice or (iii) have sell, lease, license, waive, release, transfer, encumber or otherwise dispose of any Indebtedness, Liens of its material assets outside the ordinary course of business and consistent with past practice; (other than Permitted Encumbrancesd) or Contingent Obligations other than (a) under the Guaranty or the Security Agreement and (b) customary indemnifications of officers and directors: THEN (i) upon incur, assume or prepay any material indebtedness or any other material liabilities other than in each case in the occurrence ordinary course of any Event of Default described in subsection 8.6 or 8.7 business and consistent with respect to Companypast practice, each of (a) the unpaid principal amount of and accrued interest on the Loans, (b) an amount equal to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (whether or not any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letter of Credit), and (c) all other Obligations shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the occurrence and during the continuation obligations of any other Event person other than a Subsidiary of DefaultHoldings, Administrative Agent shallin each case other than in the ordinary course of business and consistent with past practice or (iii) make any loans, upon advances or capital contributions to, or investments in, any other person, other than to any Subsidiary of Holdings; (e) pay, satisfy, discharge or settle any material claim, liabilities or obligations (absolute, accrued, contingent or otherwise), other than either in the written request ordinary course of business and consistent with past practice or with pursuant to mandatory terms of any Holdings Contract in effect on the written consent of Requisite LendersOriginal Execution Date; (f) modify or amend, by written notice or waive any benefit of, any non- competition agreement to Company, declare all which Holdings or any portion of the amounts described in clauses (a) through (c) above to be, and the same shall forthwith become, immediately due and payable, and the obligation of each Lender to make any Loan, the obligation of Administrative Agent to issue any Letter of Credit and the right of any Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided that the foregoing shall not affect in any way the obligations of Revolving Lenders under subsection 3.3C(i) or the obligations of Revolving Lenders to purchase assignments of any unpaid Swing Line Loans as provided in subsection 2.1A(iii). In addition to the other rights and remedies afforded to Administrative Agent in this Section 8, upon the occurrence of an Event of Default, Administrative Agent, on behalf of the Lenders, at the direction of the Required Lenders, may require that (I) Company Cash Collateralize the Letter of Credit Usage (in an amount equal to the then outstanding amount thereof) and (II) exercise on behalf of itself, Lenders and Issuing Lender all rights and remedies available to it, Lenders and Issuing Lenders under the Loan Documents, at law or in equity. Any amounts described in clause (b) above, when received by Administrative Agent, shall be held by Administrative Agent pursuant to the terms of the Security Agreement and shall be applied as therein provided.its Subsidiaries is a party;