Common use of Conduct of Business of the Companies Clause in Contracts

Conduct of Business of the Companies. Except as set forth in Schedule 7.1, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with ARTICLE 10, (i) (x) the Sellers will cause each of the Companies to conduct its respective business and operations in the ordinary course consistent with past practice (including, without limitation, maintaining normal inventory levels), and (y) the Sellers will cause each of the Companies respectively to use its reasonable best efforts to maintain its corporate existence, preserve intact its material business relationships and goodwill with customers, suppliers and distributors, and keep available the services of its officers and key employees and (ii) without the prior written consent of the Buyer (which consent shall not be unreasonably delayed or withheld), none of the Companies shall undertake any of the following actions: (a) issue, sell or pledge or otherwise encumber, or authorize or propose the issuance, sale, pledge or encumbrance of any securities in respect of, in lieu of, or in substitution for shares of such Company; (b) adopt any amendment to such Company’s articles of incorporation or by laws; (c) incur any Indebtedness other than pursuant to its existing debt instruments or repay, prepay or otherwise reduce the amount of its Indebtedness outstanding on the date hereof, except as required by the terms thereof as in effect on the date of this Agreement; (d) (i) increase the rate or terms of compensation or benefits of any of its directors, officers or other employees, or pay any bonus or other amount to any director, officer or employee, except as may be required under existing employment agreements or such merit raises or increases in benefits, in each case (x) in the ordinary course of business consistent with past practice to the base salary or wages of employees of such Company who are not officers, senior managers or directors, or (y) as required by applicable law, (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not contemplated by any Company Benefit Plan to any director, officer or employee, whether past or present, (iii) enter into, adopt or amend (except to comply with applicable law) any employment, bonus, severance or retirement contract or adopt any employee benefit plan, or (iv) hire any officer or director; (e) sell, lease, license, transfer, abandon or otherwise dispose of, any of its property or assets other than the sale of inventory in the ordinary course of business or any transfer made pursuant to Section 7.7 below; (f) make any loans, advances or capital contributions, except advances for travel and other normal business expenses, to officers and employees; (g) materially amend, terminate or enter into any material contract or any Lease (other than (i) bidding for and entering into contracts with customers or suppliers in the ordinary course of business consistent with past practice in an amount not exceeding $50,000 and (ii) terminations of contracts and Leases as a result of the expiration of the term of such contracts or Leases); (h) acquire any business or Person, by merger or consolidation, purchase of substantial assets or equity interests, or by any other manner, in a single transaction or a series of related transactions; (i) make any change in any method of accounting other than those required by GAAP; (j) make or revoke any Tax election, settle or compromise any audit, examination or other Tax claim, change any method of Tax accounting, file any amended Tax Return or enter into any closing agreement with any tax authority, file any Tax Return other than in a manner consistent with past practice, or file any ruling request, or closing agreement or similar agreement with respect to Taxes; (k) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of such Company or enter into negotiations for the purpose of making any amendments to any collective bargaining agreement; (l) enter into any transaction with any of the Sellers, any Affiliate of any of the Sellers or any other Affiliate of such Company except as set forth in Schedule 7.1(1) or in the ordinary course of business; (m) fail to keep in force, cancel or reduce any insurance coverage other than with respect to any Company Benefit Plan in the ordinary course of business consistent with past practice; (n) compromise, settle or agree to settle any material suit, action, claim, proceeding or investigation (including any material suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby) or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability or obligation (absolute or accrued, asserted or unasserted, contingent or otherwise); (o) (i) make or agree to make any capital expenditure or expenditures, or enter into any agreements or arrangements providing for capital expenditures, in each case other than those included in the Companies’ capital expenditure plans set forth in Schedule 7.1(o), or (ii) enter into any new line of business outside of its existing business segments; (p) cancel or waive any material claim or right pursuant to any Material Contract or Lease, or any other claim or rights that is individually in excess of $50,000; (q) cancel or reduce any of the Companies’ insurance coverage; or (r) authorize, commit or agree to take any of the foregoing actions.

Conduct of Business of the Companies. (a) Except (i) as expressly contemplated by this Agreement or in connection with the repurchase of equity from the Founder Partners pursuant to Section 2.4.1 of the Founders’ Letter Agreement, (ii) pursuant to any applicable Law (including COVID-19 Measures), (iii) as otherwise set forth in Schedule 7.16.1 or (iv) in connection with the Pre-Closing Alabama Transactions, during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with ARTICLE 10Article IX (Termination), (i) (x) the Sellers will cause each of the Companies to shall, and shall cause the Company Group Entities to, conduct its their respective business and operations in the ordinary course consistent with past practice (including, without limitation, maintaining normal inventory levels), and (y) the Sellers will cause each of the Companies respectively to use its reasonable best efforts to maintain its corporate existence, preserve intact its material business relationships and goodwill with customers, suppliers and distributors, and keep available the services of its officers and key employees and (ii) without the prior written consent of the Buyer (which consent shall not be unreasonably delayed or withheld), none of the Companies shall undertake any of the following actions: (a) issue, sell or pledge or otherwise encumber, or authorize or propose the issuance, sale, pledge or encumbrance of any securities in respect of, in lieu of, or in substitution for shares of such Company; (b) adopt any amendment to such Company’s articles of incorporation or by laws; (c) incur any Indebtedness other than pursuant to its existing debt instruments or repay, prepay or otherwise reduce the amount of its Indebtedness outstanding on the date hereof, except as required by the terms thereof as in effect on the date of this Agreement; (d) (i) increase the rate or terms of compensation or benefits of any of its directors, officers or other employees, or pay any bonus or other amount to any director, officer or employee, except as may be required under existing employment agreements or such merit raises or increases in benefits, in each case (x) in the ordinary course of business consistent with past practice and use commercially reasonable efforts to maintain their assets, properties and goodwill and relationships with their customers, vendors, resellers, partners, contractors, key employees, material business relations and Governmental Authorities and, without the base salary or wages prior written consent of employees Acquiror (such consent not to be unreasonably withheld), shall not undertake any action with respect to any Company Group Entity that would have been required to be disclosed against Section 4.8 (other than Section 4.8(c)(iii) (solely with respect to (x) tax distributions and distributions of such Company who are not officers, senior managers or directors, or carry and (y) cash distributions; provided that the Companies shall not make distributions (other than a Qualified Cash Distribution) that would reasonably be expected to cause (as required determined by applicable lawthe Companies in good faith) the Balance Sheet Adjustment Amount to be less than zero (0) immediately after such distribution was made (calculated as if the date of such distribution was the Closing Date) or reasonably be expected to result in any Alabama Partner’s Alabama Partner Closing Cash Amount to be less than zero dollars ($0)), Section 4.8(c)(xvii) (iisolely with respect to the extension of loans to Alabama Partners (solely to the extent related to the foregoing) pay which will be settled prior to or agree in connection with the Closing), Section 4.8(c)(xxi) and Section 4.8(c)(xxiii)) had such action been taken prior to pay any pension, retirement allowance or other employee benefit not contemplated by any Company Benefit Plan to any director, officer or employee, whether past or present, (iii) enter into, adopt or amend (except to comply with applicable law) any employment, bonus, severance or retirement contract or adopt any employee benefit plan, or (iv) hire any officer or director;the date of this Agreement. (eb) sellFrom the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with Article IX (Termination), leasethe Companies will reasonably cooperate with Acquiror to provide information and/or reasonably take any steps that are necessary to ensure compliance with ERISA Title I, license, transfer, abandon or otherwise dispose of, Section 4975 of the Code and/or any of its property or assets other than applicable Similar Law at the sale of inventory Effective Time. (c) Except in the ordinary course of business (including in connection with engaging consultants and advisors and awarding “downstairs” carried interest in the ordinary course), from the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with Article IX (Termination), the Companies shall not grant, and shall prohibit the Company Group Entities from granting, any Person an interest in the management fees, performance fees, carried interest, transaction fees, accounts receivable or other similar fees or revenue streams in respect of the Company Funds; provided, that the Company Group Entities may grant “downstairs” carried interest in the ordinary course so long as the aggregate amount of “downstairs” carried interest in respect of a Company Fund does not exceed fifty percent (50%) of the aggregate carried interest of such Company Fund (provided, that such 50% limitation shall not apply to any transfer grants of “downstairs” carried interest made pursuant to Section 7.7 below;arrangements in existence as if the date hereof that by their terms contemplate potential grants that could in aggregate be in excess of 50%). (d) From the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with Article IX (Termination), except in the ordinary course, the Companies shall not, and shall prohibit the Company Group Entities from (i) unless otherwise permitted by this Agreement, hire, terminate, or send a notice of the termination of, the employment or engagement of any Alabama Partner, (ii) establish, adopt, enter into, amend or terminated any Plan or collective bargaining agreement; (iii) (x) increase or grant any increase to the compensation, consulting fees or other benefits provided to any individual service provider of a Company Group Entity who earns in excess of $300,000 per year, or, with respect to any individual service provider, any increase in excess of 15% of the compensation, consulting fees or other benefits provided to the individual service provider, or (y) grant or pay any loan, bonus or incentive-based compensation, or severance, change of control or termination payments to, any individual service provider of a Company Group Entity; (iv) grant any new awards, or amend or modify the terms of any outstanding awards, under any Plan, or (v) loan or advance any money or any other property to any present or former member, director, officer, employee or individual service provider of any Company Group Entity. (e) Notwithstanding anything to the contrary contained herein, (A) nothing contained in this Agreement will give Acquiror, directly or indirectly, rights to control or direct the business or operations of the Company Group Entities or the Company Funds prior to the Closing and (B) nothing contained in this Agreement shall operate to prevent or restrict any act or omission by the Companies or the Company Funds the taking of which is required by applicable Law. Prior to the Closing, the Company Group Entities and the Company Funds will exercise, consistent with the terms and conditions of this Agreement, control of their business and operations. (f) make Notwithstanding anything to the contrary herein, API shall have the right, at any loanstime prior to five (5) days prior to the delivery of the Estimated Statement, advances or capital contributions, except advances for travel and other normal business expensessubject to compliance with the last sentence of this Section 6.1(f), to officers effect the withdrawal from API of (A) no more than five (5) Alabama Partners who collectively represent no more than a five percent (5%) Ownership Percentage in the aggregate from API or (B) such other Alabama Partners as Acquiror shall consent to in writing (each such withdrawn Alabama Partner, a “Withdrawn Partner”), in each case, in accordance with the terms and employees;conditions of the partnership agreement of API and in exchange for the amount of such Withdrawn Partner’s “OpCo Capital Account” (as defined therein), such that such Withdrawn Partner shall cease to hold any interest in API and shall not be an Alabama Partner for purposes of this Agreement; provided, that no such Withdrawn Partner shall be a Key Person or Other Senior Partner. Upon such withdrawal, the applicable Person shall cease to be an Alabama Partner hereunder. The Companies shall notify in writing and reasonably consult with Acquiror in good faith prior to effecting any such withdrawal, which notice shall include a schedule of the revised Ownership Percentage for each Alabama Partner after giving effect to such proposed withdrawal (which shall accrete to each remaining Alabama Partners pro rata in accordance with their respective Ownership Percentages). (g) materially amend, terminate or enter into any material contract or any Lease (other than (i) bidding for The Companies and entering into contracts with customers or suppliers in the ordinary course of business consistent with past practice in an amount not exceeding $50,000 Acquiror acknowledge and (ii) terminations of contracts and Leases as a result of agree to the expiration of the term of such contracts or Leases); (h) acquire any business or Person, by merger or consolidation, purchase of substantial assets or equity interests, or by any other manner, in a single transaction or a series of related transactions; (i) make any change in any method of accounting other than those required by GAAP; (j) make or revoke any Tax election, settle or compromise any audit, examination or other Tax claim, change any method of Tax accounting, file any amended Tax Return or enter into any closing agreement with any tax authority, file any Tax Return other than in a manner consistent with past practice, or file any ruling request, or closing agreement or similar agreement with respect to Taxes; (k) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of such Company or enter into negotiations for the purpose of making any amendments to any collective bargaining agreement; (l) enter into any transaction with any of the Sellers, any Affiliate of any of the Sellers or any other Affiliate of such Company except as matters set forth in on Schedule 7.1(1) or in the ordinary course of business; (m) fail to keep in force, cancel or reduce any insurance coverage other than with respect to any Company Benefit Plan in the ordinary course of business consistent with past practice; (n) compromise, settle or agree to settle any material suit, action, claim, proceeding or investigation (including any material suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby) or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability or obligation (absolute or accrued, asserted or unasserted, contingent or otherwise6.1(g); (o) (i) make or agree to make any capital expenditure or expenditures, or enter into any agreements or arrangements providing for capital expenditures, in each case other than those included in the Companies’ capital expenditure plans set forth in Schedule 7.1(o), or (ii) enter into any new line of business outside of its existing business segments; (p) cancel or waive any material claim or right pursuant to any Material Contract or Lease, or any other claim or rights that is individually in excess of $50,000; (q) cancel or reduce any of the Companies’ insurance coverage; or (r) authorize, commit or agree to take any of the foregoing actions.

Conduct of Business of the Companies. Except as set forth in Schedule 7.1, during the period from (a) From the date of this Agreement to hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with ARTICLE 10Closing, (i) (x) the Sellers will shall cause each of the Companies to conduct its respective business and operations their businesses only in the ordinary course and in a manner consistent with past practice practices, and use their respective Reasonable Efforts to preserve their relationships with licensors, suppliers, dealers, customers and others having business relationships with the Companies. Except as expressly contemplated by this Agreement, the Transfer Agreements or the Executed Ancillary Agreements, as may be required by applicable Law or any Governmental Entity, or as set forth on Schedule 5.5(a), from the date hereof until the Closing, without prior written consent of Buyer, Sellers shall not permit either of the Companies to: (i) sell or dispose of any of its material assets or properties, other than sales or dispositions in the ordinary course of business (including, without limitation, maintaining normal inventory levelssales or dispositions pursuant to gas purchase or sale contracts), and (y) sales or dispositions of obsolete or surplus assets, sales or dispositions in connection with the Sellers will cause each normal repair and/or replacement of assets or properties, or sales or dispositions in accordance with any Material Contract; provided, that the Companies respectively shall be permitted to use its reasonable best efforts declare and distribute any cash dividends or other cash distributions and to maintain its corporate existence, preserve intact its material business relationships and goodwill with customers, suppliers and distributors, and keep available the services of its officers and key employees and repay any intercompany debt; (ii) without the prior written consent of the Buyer (which consent shall not be unreasonably delayed or withheld), none of the Companies shall undertake create any Lien on any of the following actions: its assets, except (aA) issue, sell if such Lien shall be released as of Closing or pledge or otherwise encumber, or authorize or propose the issuance, sale, pledge or encumbrance of any securities in respect of, in lieu of, or in substitution for shares of such Company(B) a Permitted Lien; (biii) adopt amend in any amendment to material respect, terminate or assign, or waive any material rights under, any Material Contract, other than termination of such Company’s articles of incorporation or by lawsMaterial Contracts in accordance with the terms thereof; (civ) incur any Indebtedness obligation or liability for borrowed money (“Indebtedness”) other than (A) Indebtedness to Affiliates which will be extinguished prior to the Closing and (B) Indebtedness incurred in accordance with a Contract or pursuant to its existing debt instruments or repay, prepay or Contracts otherwise reduce the amount of its Indebtedness outstanding on the date hereof, except as required by the terms thereof as in effect on the date of expressly permitted to be entered into under this Agreement; (dv) (i) increase merge or consolidate with, or acquire any or all of the rate capital stock or terms of compensation or benefits assets of any of its directors, officers or other employees, or pay any bonus or other amount to any director, officer or employee, except as may be required under existing employment agreements or such merit raises or increases in benefits, in each case (x) in the ordinary course of business consistent with past practice to the base salary or wages of employees of such Company who are not officers, senior managers or directors, or (y) as required by applicable law, (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not contemplated by any Company Benefit Plan to any director, officer or employee, whether past or present, (iii) enter into, adopt or amend (except to comply with applicable law) any employment, bonus, severance or retirement contract or adopt any employee benefit plan, or (iv) hire any officer or directorPerson; (evi) sellassume, leaseguarantee, license, transfer, abandon endorse or otherwise dispose ofbecome responsible for the obligations of any other Person, or make loans or advances, capital contributions to, or investments in, to any of its property or assets other than the sale of inventory in the ordinary course of business or any transfer made pursuant to Section 7.7 below; (f) make any loans, advances or capital contributionsPerson, except advances for travel and other normal business expenses, to officers and employees; (g) materially amend, terminate or enter into any material contract or any Lease (other than (i) bidding for and entering into contracts with customers or suppliers in the ordinary course of business consistent with past practice in an amount not exceeding $50,000 and (ii) terminations of contracts and Leases as a result of the expiration of the term of such contracts or Leases); (h) acquire any business or Person, by merger or consolidation, purchase of substantial assets or equity interests, or by any other manner, in a single transaction or a series of related transactions; (i) make any change in any method of accounting other than those required by GAAP; (j) make or revoke any Tax election, settle or compromise any audit, examination or other Tax claim, change any method of Tax accounting, file any amended Tax Return or enter into any closing agreement with any tax authority, file any Tax Return other than in a manner consistent with past practice, or file any ruling request, or closing agreement or similar agreement with respect to Taxes; (k) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of such Company or enter into negotiations for the purpose of making any amendments to any collective bargaining agreement; (l) enter into any transaction with any of the Sellers, any Affiliate of any of the Sellers or any other Affiliate of such Company except as set forth in Schedule 7.1(1) or in the ordinary course of business; (mvii) fail to keep grant any increase in forcethe compensation or benefits of any Company Employees except in the ordinary course of business, cancel consistent with past practice, or reduce unless such action is required by an existing agreement, including any insurance coverage other than Employee Plan or any Collective Bargaining Agreement or, with respect to any Company Benefit Plan Employees and except for those that in the ordinary course of business consistent with past practicewould also affect employees of the Companies’ Affiliates generally, create any new Employee Plan or extend, modify or change in any material respect (except as may be required by applicable law) any Employee Plan or terminate any existing Employee Plan; (nviii) compromiseenter into any Contract with Affiliates of Sellers or any Material Contract other than those (A) executed in the ordinary course of business or consistent with regulatory arrangements or (B) otherwise provided for or required in implementing another provision in this Section 5.5; (ix) alter in any material way the manner in which it has regularly and customarily maintained its books of account and records, except as may be required by applicable Law or professional standards; (x) issue or sell any equity interests or any securities or obligations convertible into or exchangeable for, or give any Person any right to acquire, any equity interests in such Company; (xi) make any capital expenditures, except as expressly permitted under subsection (b) below; (xii) amend its articles of organization or limited liability company operating agreement; (xiii) adopt a plan of complete or partial liquidation or dissolution; (xiv) in each case, except in the ordinary course of business: change or revoke any material election with respect to Taxes; prepare any Tax Return in a manner materially inconsistent with past practice (unless otherwise required by applicable Law), amend any material Tax Return; enter into any closing agreement or other agreement with respect to material Taxes with any Governmental Entity; settle or compromise any material Tax liability, claim or assessment; make or surrender any material claim for a refund of Taxes; agree to settle an extension or waiver of the statute of limitations with respect to the assessment or collection of material Taxes; or seek any ruling or agreement from any Governmental Entity with respect to material Taxes; (xv) fail to maintain with financially responsible insurance companies insurance at substantially the same terms (including limits and deductibles) as is in effect on the date hereof; (xvi) enter into any employment agreements with employees (x) for positions above the “manager” or equivalent level, and for a period extending beyond the Closing or (y) including severance payments or any other type of compensation to be paid upon the occurrence of any change of control of either Company; (xvii) change, in any material suitrespect, actionany method of financial accounting or accounting practice or policy used by either of the Companies, claimother than such changes required by applicable Law or U.S. GAAP, proceeding except to conform to a change in method of accounting or investigation accounting practice or policy used by Parent; (including xviii) terminate, discontinue, close or dispose of any material suitfacility or business operation of either of the Companies, actionterminate any employee in a position above the “manager” level (other than for cause, claimas determined by Sellers), proceeding or investigation relating to this Agreement pursue any systematic program of layoffs or reduction in force of employees of the transactions contemplated herebyCompanies; (xix) or pay, discharge discharge, settle, satisfy, compromise or satisfy waive any Action or agree to payclaim (absolute, discharge or satisfy any claim, liability or obligation (absolute or accrued, asserted or unasserted, contingent or otherwise); (o) (i) make or agree to make any capital expenditure or expenditures, or enter into any agreements or arrangements providing for capital expenditures, in each case other than those included in the Companies’ capital expenditure plans set forth in Schedule 7.1(o), or (ii) enter into any new line of business outside of its existing business segments; (p) cancel or waive any material claim or right pursuant to any Material Contract or Lease, or any other claim or rights that is individually having a value in excess of One Million Dollars ($50,000; 1,000,000) individually or Two Million Dollars (q$2,000,000) cancel or reduce any of in the Companies’ insurance coverageaggregate; or (rxx) authorize, commit enter into an agreement or agree to take do any of the foregoing actionsthings described in clauses (i) through (xx) above. (b) Notwithstanding anything herein to the contrary, the Companies may incur capital expenditures (i) in accordance with the amounts on Schedule 5.5(b), in the aggregate per year, plus an amount that is equal to ten percent (10%) above such amounts; (ii) which have been approved in writing by Buyer within ten (10) Business Days after any written request by Parent, provided, however, that if Parent has not received written approval or rejection within such ten (10) Business Days after delivery by Parent of such written request, then the capital expenditure shall be deemed approved; (iii) as may be required in accordance with good utility practice upon the occurrence of any emergency or other similar contingency; or (iv) as required by applicable Law; provided, that, in the case of clauses (iii) and (iv), Sellers shall, upon the occurrence of any such circumstances or requirement, promptly inform Buyer of such occurrence. (c) Notwithstanding anything herein to the contrary, Sellers and the Companies shall have the right to conduct and prosecute any and all hearings, appeals or other proceedings not specifically related to the transactions contemplated by this Agreement, the Transfer Agreements or the Ancillary Agreements before any federal, state or local governmental authority, such as the State Regulators, as they deem appropriate in their sole discretion. (d) Until the earlier of the Closing or termination of this Agreement, within (i) ten (10) Business Days after the date that Parent has filed any Form 10-Q of Parent with the Securities and Exchange Commission, Sellers shall deliver to Buyer copies of the unaudited quarterly financial statements with respect to the Companies for such quarter, which financial statements shall be prepared from the books and records of the Companies consistent with past practice, (ii) ten (10) Business Days after the date that the unaudited annual financial statements with respect to the Companies have been finalized by Sellers in the ordinary course of business, Sellers shall deliver to Buyer copies of such unaudited annual financial statements for such year, which financial statements shall be prepared from the books and records of the Companies consistent with past practice, and (iii) ten (10) Business Days after quarterly management reports of variances from the “2013 Operating Plan” with respect to the Companies have been prepared by Sellers in the ordinary course of business, Sellers shall deliver to Buyer copies of such reports. (e) Sellers shall provide to Buyer on or prior to the date hereof, a copy of the “2013 Operating Plan” and any related operating budgets in existence as of the date hereof for each of the Companies, including the employee headcount for each Company, and shall thereafter provide to Buyer any modified or updated versions as promptly as reasonably practical after they become available from the date hereof until the Closing. (f) Actions taken by Parent, Holdco or either Company with the consent of Buyer pursuant to Section 5.5(a) shall not be deemed to be a misrepresentation or breach of a representation or warranty made by Sellers, and such actions shall not be subject to, or included in, any determination whether the provisions of Sections 6.2 or 9.1(c) are satisfied or applicable. (g) Sellers agree to file with the Pennsylvania Public Utility Commission a Long Term Infrastructure Improvement Plan and a Petition for recovery of related improvement costs through a separate DSIC tariff no later than June 30, 2013. Sellers also agree to use reasonable efforts to support and defend such filings in order to achieve timely approval of both filings.

Conduct of Business of the Companies. Except as set forth in Schedule 7.1, during During the period from the date of this Agreement to the earlier of the Final Closing Date and the termination of this Agreement in accordance with ARTICLE 10Date, (i) (x) the Sellers will Seller agrees to use its reasonable efforts to cause each of the Companies to conduct its their respective business and operations in the ordinary course consistent with past practice of business. Notwithstanding the immediately preceding sentence, pending the Final Closing Date and except as may be first approved by Purchaser (includingsuch approval not to be unreasonably withheld) or as is otherwise permitted or required by this Agreement, without limitation, maintaining normal inventory levels), and (y) the Sellers will cause each of the Companies respectively Seller agrees to use its reasonable best efforts to maintain its corporate existence, preserve intact its material business relationships and goodwill with customers, suppliers and distributors, and keep available the services of its officers and key employees and (ii) without the prior written consent of the Buyer (which consent shall not be unreasonably delayed or withheld), none of the Companies shall undertake any of the following actions:cause (a) issue, sell or pledge or otherwise encumber, or authorize or propose the issuance, sale, pledge or encumbrance each Company's Articles of any securities Incorporation and By-Laws to be maintained in respect of, in lieu of, or in substitution for shares of such Company; (b) adopt any amendment to such Company’s articles of incorporation or by laws; (c) incur any Indebtedness other than pursuant to its existing debt instruments or repay, prepay or otherwise reduce the amount of its Indebtedness outstanding on the date hereof, except as required by the terms thereof as in effect their respective forms on the date of this Agreement;, (db) (i) increase the rate compensation payable or terms of compensation or benefits of any of its directors, officers or other employees, or pay any bonus or other amount to become payable by each Company to any director, officer or employeeemployee being paid $150,000 per year or more to be maintained at the amount existing on the date of this Agreement, (c) each Company to refrain from making any bonus, pension, retirement or insurance payment or arrangement to or with any Persons except those that have been accrued or accrue in the ordinary course of business, (d) each Company to refrain from entering into any contract or commitment, except as may be required under existing employment agreements or such merit raises or increases in benefits, in each case (x) contracts and commitments in the ordinary course of business consistent with past practice to the base salary or wages for aggregate amounts of employees of such Company who are not officers, senior managers or directors, or (y) as required by applicable law, (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not contemplated by any Company Benefit Plan to any director, officer or employee, whether past or present, (iii) enter into, adopt or amend (except to comply with applicable law) any employment, bonus, severance or retirement contract or adopt any employee benefit plan, or (iv) hire any officer or director;less than $50,000 per fiscal year, (e) selleach Company to refrain from increasing its indebtedness for borrowed money, lease, license, transfer, abandon or otherwise dispose of, any of its property or assets other than the sale of inventory except current borrowings in the ordinary course of business or any transfer made pursuant to Section 7.7 below;under the General Motors Acceptance Corporation ("GMAC") floor- plan financing facility, (f) make each Company to refrain from canceling or waiving any loansclaims or rights of substantial value which individually or in the aggregate are material to the Companies, advances or capital contributions, except advances for travel and other normal business expenses, to officers and employees;taken as a whole, (g) materially amend, terminate each Company to refrain from declaring or enter into paying any material contract or any Lease (other than (i) bidding for and entering into contracts with customers or suppliers in the ordinary course of business consistent with past practice in an amount not exceeding $50,000 and (ii) terminations of contracts and Leases as a result of the expiration of the term of such contracts or Leases);dividends,. (h) acquire any business or Personeach Company to collect its contracts in transit that are in existence on the date of this Agreement, by merger or consolidation, purchase of substantial assets or equity interests, or by any other manner, in a single transaction or a series of related transactions; (i) each Company to file any existing claims under the Company's insurance policies and to obtain the insurance company's defense of claims made against the Company, particularly those disclosed in Schedule 2.9, (including assistance from Seller's legal staff and counsel to enforce insurance coverage in effect and make any change in any method of accounting other than those required by GAAP; claims prior to the Final Closing Date), and (j) make or revoke any Tax electionthe reconciliation of Seller's payables with each Company's receivables. Notwithstanding anything else herein to the contrary, settle or compromise any audit, examination or other Tax claim, change any method of Tax accounting, file any amended Tax Return or enter into any closing agreement with any tax authority, file any Tax Return other than in a manner consistent with past practice, or file any ruling request, or closing agreement or similar agreement with respect to Taxes; (k) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of such Company or enter into negotiations Seller shall not be responsible for the purpose of making any amendments obligations in Article IV, Section 1 (a) through (j) above, to any collective bargaining agreement; (l) enter into any transaction with any of the Sellers, any Affiliate of any of the Sellers extent Purchaser or any other Affiliate of such Company except as set forth in Schedule 7.1(1) or in the ordinary course of business; (m) fail to keep in force, cancel or reduce any insurance coverage other than with respect to any Company Benefit Plan in the ordinary course of business consistent with past practice; (n) compromise, settle or agree to settle any material suit, action, claim, proceeding or investigation its representatives (including any material suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby) or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability or obligation (absolute or accrued, asserted or unasserted, contingent or otherwise); (o) (i) make or agree to make any capital expenditure or expenditures, or enter into any agreements or arrangements providing for capital expenditures, in each case other than those included in the Companies’ capital expenditure plans set forth in Schedule 7.1(o), or (ii) enter into any new line of business outside of its existing business segments; (p) cancel or waive any material claim or right Xx. Xxxx pursuant to any Material Contract or Lease, or any other claim or rights that is individually in excess of $50,000; (qthe Management Agreement attached hereto as EXHIBIT B) cancel or reduce any of the Companies’ insurance coverage; or (r) authorize, commit or agree to take any of the foregoing actionshave taken actions inconsistent therewith.

Conduct of Business of the Companies. Except as set forth in Schedule 7.1, during During the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with ARTICLE 10Closing, (i) (x) the Sellers will Cable shall cause each of the Companies to conduct its respective business and their operations in the ordinary course consistent with past practice (includingof business. Notwithstanding the immediately preceding sentence, without limitation, maintaining normal inventory levels), pending the Closing and (y) the Sellers will cause each of the Companies respectively to use its reasonable best efforts to maintain its corporate existence, preserve intact its material business relationships and goodwill with customers, suppliers and distributors, and keep available the services of its officers and key employees and (ii) without the prior written consent of the except as may be first approved by Buyer (which consent shall such approval not to be unreasonably delayed withheld) or withheld)as is otherwise permitted or required by this Agreement, none of the Companies Cable shall undertake any of the following actions: cause (a) issue, sell or pledge or otherwise encumber, or authorize or propose the issuance, sale, pledge or encumbrance Companies' Articles of any securities Incorporation and By-Laws to be maintained in respect of, in lieu of, or in substitution for shares of such Company; (b) adopt any amendment to such Company’s articles of incorporation or by laws; (c) incur any Indebtedness other than pursuant to its existing debt instruments or repay, prepay or otherwise reduce the amount of its Indebtedness outstanding on the date hereof, except as required by the terms thereof as in effect their respective forms on the date of this Agreement; , (db) (i) increase the rate compensation payable or terms of compensation or benefits of any of its directors, officers or other employees, or pay any bonus or other amount to become payable by the Companies to any director, officer or employeeemployee being paid $100,000 per year or more to be maintained at the amount existing on the date of this Agreement, (c) the Companies to refrain from making any bonus, pension, retirement or insurance payment or arrangement to or with any persons except as may be required under existing employment agreements those that have been accrued or such merit raises or increases in benefits, in each case (x) accrue in the ordinary course of business consistent with past practice to the base salary or wages of employees of such Company who are not officers, senior managers or directors, or (y) as required by applicable law, (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not contemplated by any Company Benefit Plan to any director, officer or employee, whether past or present, (iii) enter into, adopt or amend (except to comply with applicable law) any employment, bonus, severance or retirement contract or adopt any employee benefit plan, or (iv) hire any officer or director; (e) sell, lease, license, transfer, abandon or otherwise dispose of, any of its property or assets other than the sale of inventory in the ordinary course of business or any transfer made pursuant to Section 7.7 below; (f) make any loans, advances or capital contributions, except advances for travel and other normal business expenses, to officers and employees; (g) materially amend, terminate or enter into any material contract or any Lease (other than (i) bidding for and entering into contracts with customers or suppliers in the ordinary course of business consistent with past practice in an amount not exceeding $50,000 and (ii) terminations of contracts and Leases as a result of the expiration of the term of such contracts or Leases); (h) acquire any business or Person, by merger or consolidation, purchase of substantial assets or equity interests, or by any other manner, in a single transaction or a series of related transactions; (i) make any change in any method of accounting other than those required by GAAP; (j) make or revoke any Tax election, settle or compromise any audit, examination or other Tax claim, change any method of Tax accounting, file any amended Tax Return or enter into any closing agreement with any tax authority, file any Tax Return other than in a manner consistent with past practice, or file any ruling request, or closing agreement or similar agreement with respect to Taxes; (k) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of such Company or enter into negotiations for the purpose of making any amendments to any collective bargaining agreement; (l) enter into any transaction with any of the Sellers, any Affiliate of any of the Sellers or any other Affiliate of such Company except as set forth in Schedule 7.1(1this Agreement (d) the Companies to refrain from entering into any contract or commitment except contracts and commitments in the ordinary course of business; , (me) fail the Companies to keep in forcerefrain from increasing its indebtedness for borrowed money, cancel or reduce any insurance coverage other than with respect to any Company Benefit Plan except current borrowings in the ordinary course of business consistent with past practice; business, (nf) compromise, settle the Companies to refrain from canceling or agree to settle waiving any material suit, action, claim, proceeding claims or investigation (including any material suit, action, claim, proceeding rights of substantial value which individually is or investigation relating to this Agreement or the transactions contemplated hereby) or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability or obligation (absolute or accrued, asserted or unasserted, contingent or otherwise); (o) (i) make or agree to make any capital expenditure or expenditures, or enter into any agreements or arrangements providing for capital expenditures, in each case other than those included in the aggregate are material to the Companies’ capital expenditure plans set forth in Schedule 7.1(o); and (g) the Companies to refrain from declaring or paying any dividends, or (ii) enter into any new line of business outside of its existing business segments; (p) cancel or waive any material claim or right pursuant to any Material Contract or Leasenotwithstanding the above, or any other claim or rights that is individually in excess of $50,000; (q) cancel or reduce any nothing contained herein prohibits the repayment of the Companies’ insurance coverage; or (r) authorize, commit or agree to take any of the foregoing actionsshareholder note as provided in Section 5._herein.

Conduct of Business of the Companies. Except as set forth in Schedule 7.1, during During the period from the date of this Agreement to the earlier of Closing Date, the Closing Date Owners shall cause the Companies to, and the termination of this Agreement in accordance with ARTICLE 10Companies shall, (i) (x) conduct the Sellers will cause each operations of the Companies only according to conduct its their respective Ordinary Course of Business and to use their respective Best Efforts to preserve intact the business and operations in the ordinary course consistent with past practice (including, without limitation, maintaining normal inventory levels), and (y) the Sellers will cause each organizations of the Companies respectively to use its reasonable best efforts to maintain its corporate existenceCompanies, preserve intact its material business relationships and goodwill with customers, suppliers and distributors, and keep available the services of its managers, officers and key employees of each of the Companies and maintain satisfactory relationships with licensors, suppliers, distributors, lessees, clients and others having business relationships with any of the Companies. During the period from the date hereof to and including the Closing Date, the Companies shall, and the Owners shall cause the Companies to, pay all accounts payable and other payables of the Companies in a timely manner consistent with past practices. Notwithstanding the immediately preceding sentence, pending the Closing and except as may be first 28 approved by Purchaser or as is otherwise permitted or required by this Agreement, the Owners will cause the Companies to, and the Companies will, (a) cause their respective Articles of Incorporation, Articles of Organization, By-Laws and/or Operating Agreement and other governing documents to be maintained in their form on the date of this Agreement, (b) maintain the compensation payable or to become payable by any of the Companies to any officer, employee or agent at their levels on the date of this Agreement, except for increases to non-salary store personnel consistent with past practices, and increases to salary personnel consistent with past practices not to exceed the increase in the CPI during the preceding 12-month period, (c) refrain from making any bonus, pension, retirement or insurance payment or arrangement to or with any such persons except those that may have already been accrued, and bonus and insurance payments in the Ordinary Course of Business and consistent with the past practice of such Company, (d) refrain from entering into any contract or commitment except contracts in the Ordinary Course of Business, (e) refrain from paying or declaring any dividends or making any distribution in cash or in property to any of its shareholders or members (other than cash distributions consistent with past practices not exceeding $45,600 per weekly period), (f) refrain from creating, incurring, or assuming any long-term or short-term debt (other than accounts payable incurred in the Ordinary Course of Business consistent with past practices) whether for money borrowed or otherwise, (g) refrain from assuming, guarantying, endorsing or otherwise becoming liable or responsible for the obligation of any Person, (h) refrain from making any loans, advances or capital contributions to, or investments in, any other Person (other than accounts receivables arising in the Ordinary Course of Business), (i) refrain from making any change affecting any bank, safe deposit or power of attorney arrangements of a Company, (j) refrain from incurring or committing to any capital expenditure, obligations or liabilities in respect thereof which in the aggregate exceed or would exceed $10,000 on a cumulative basis, (k) refrain from any action which may subject the assets of any Company to any Encumbrance of any kind or character except in such Company's Ordinary Course of Business, and (iil) refrain from taking any action, the taking of which, or from omitting to take any action, the omission of which, would cause any of the representations and warranties contained in ARTICLE III to fail to be true and correct in all respects as of the Closing Date as though made on and as of the Closing Date. During the period from the date of this Agreement to the Closing Date, the Owners shall cause the Companies to, and the Companies shall, confer on a regular and frequent basis with one or more designated Representatives of Purchaser to report material operational matters and to report the general status of ongoing operations of the Companies. The Owners shall cause the Companies to, and the Companies shall, notify Purchaser of any unexpected emergency or other change in the normal course of any of their respective businesses or in the operation of any of their respective properties and of any Proceeding (or communications indicating that the same may be contemplated), involving any material property of any Company, and to keep Purchaser fully informed of such events and permit its representatives prompt access to all materials prepared in connection therewith. Except as otherwise expressly permitted by this Agreement, and without limiting the generality of the foregoing, between the date of this Agreement and the Closing Date, the Owners will cause the Companies not to, and the Companies will not, without the prior written consent of the Buyer (which consent shall not be unreasonably delayed or withheld)Purchaser, none of the Companies shall undertake take any of the following actions: (a) issue, sell or pledge or otherwise encumberaffirmative action, or authorize fail to take any reasonable action within their or propose the issuanceits control, sale, pledge or encumbrance of any securities in respect of, in lieu of, or in substitution for shares of such Company; (b) adopt any amendment to such Company’s articles of incorporation or by laws; (c) incur any Indebtedness other than pursuant to its existing debt instruments or repay, prepay or otherwise reduce the amount of its Indebtedness outstanding on the date hereof, except as required by the terms thereof as in effect on the date of this Agreement; (d) (i) increase the rate or terms of compensation or benefits of any of its directors, officers or other employees, or pay any bonus or other amount to any director, officer or employee, except as may be required under existing employment agreements or such merit raises or increases in benefits, in each case (x) in the ordinary course of business consistent with past practice to the base salary or wages of employees of such Company who are not officers, senior managers or directors, or (y) as required by applicable law, (ii) pay or agree to pay any pension, retirement allowance or other employee benefit not contemplated by any Company Benefit Plan to any director, officer or employee, whether past or present, (iii) enter into, adopt or amend (except to comply with applicable law) any employment, bonus, severance or retirement contract or adopt any employee benefit plan, or (iv) hire any officer or director; (e) sell, lease, license, transfer, abandon or otherwise dispose of, any of its property or assets other than the sale of inventory in the ordinary course of business or any transfer made pursuant to Section 7.7 below; (f) make any loans, advances or capital contributions, except advances for travel and other normal business expenses, to officers and employees; (g) materially amend, terminate or enter into any material contract or any Lease (other than (i) bidding for and entering into contracts with customers or suppliers in the ordinary course of business consistent with past practice in an amount not exceeding $50,000 and (ii) terminations of contracts and Leases as a result of the expiration of the term of such contracts or Leases); (h) acquire any business or Person, by merger or consolidation, purchase of substantial assets or equity interests, or by any other manner, in a single transaction or a series of related transactions; (i) make any change in any method of accounting other than those required by GAAP; (j) make or revoke any Tax election, settle or compromise any audit, examination or other Tax claim, change any method of Tax accounting, file any amended Tax Return or enter into any closing agreement with any tax authority, file any Tax Return other than in a manner consistent with past practice, or file any ruling request, or closing agreement or similar agreement with respect to Taxes; (k) plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of such Company or enter into negotiations for the purpose of making any amendments to any collective bargaining agreement; (l) enter into any transaction with which any of the Sellers, any Affiliate of any of the Sellers changes or any other Affiliate of such Company except as set forth events listed in Schedule 7.1(1) or in the ordinary course of business; (m) fail SECTION 3.21 hereof is likely to keep in force, cancel or reduce any insurance coverage other than with respect to any Company Benefit Plan in the ordinary course of business consistent with past practice; (n) compromise, settle or agree to settle any material suit, action, claim, proceeding or investigation (including any material suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby) or pay, discharge or satisfy or agree to pay, discharge or satisfy any claim, liability or obligation (absolute or accrued, asserted or unasserted, contingent or otherwise); (o) (i) make or agree to make any capital expenditure or expenditures, or enter into any agreements or arrangements providing for capital expenditures, in each case other than those included in the Companies’ capital expenditure plans set forth in Schedule 7.1(o), or (ii) enter into any new line of business outside of its existing business segments; (p) cancel or waive any material claim or right pursuant to any Material Contract or Lease, or any other claim or rights that is individually in excess of $50,000; (q) cancel or reduce any of the Companies’ insurance coverage; or (r) authorize, commit or agree to take any of the foregoing actionsoccur.