Common use of Conduct of Business Pending the Closing Clause in Contracts

Conduct of Business Pending the Closing. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of the foregoing.

Conduct of Business Pending the Closing. During the period from (a) From the date of this Agreement and continuing hereof until the earlier of the termination of this Agreement in accordance with its terms or the Closing, except as otherwise contemplated by this Agreement, Seller shall cause the Company shall, and shall cause each of to operate its Subsidiaries to, carry on business in substantially the Business in the ordinary course of business and, same manner as it had been regularly conducted prior to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. hereof. (b) Without limiting the generality of the first sentence of this Section 7.1foregoing, during the period from the date of this Agreement through hereof until the Closing DateClosing, Seller shall cause the Company shall not, and shall not permit to take any of its Subsidiaries to, the following actions without the prior express written consent of BuyerPurchaser: (ai) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business except in the ordinary course of business, incur any obligations or liabilities (whether absolute, accrued or contingent and whether due or to become due); (fii) increase write off as uncollectible any notes or accounts receivable (or any portion thereof) that are material to the salary of any Identified Employee at Company or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practiceits subsidiaries taken as a whole; (giii) sell, transfer or otherwise dispose of, or mortgage, pledge or otherwise permit the imposition of any Lien on, any material properties or assets, whether real, personal, fixed, tangible or intangible; (iv) make any capital expenditures or rescind commitments for capital assets in excess of $100,000; (v) make any change in any accounting practices, principles, policies or methods, except as required by law, or make any change in accounting standards that are material Tax election to the Company or take any material Tax position (its subsidiaries taken as a whole unless required by law; (vi) reduce any insurance coverages applicable to the Company that are material to the Company or its subsidiaries taken as a whole; (vii) enter into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement), (ii) amend any of the Plans described on Schedule 4.14 or adopt any new employee benefit plan or (iii) grant any general increase in compensation, bonus or other benefits payable to employees of the Company; (viii) amend its Certificate of Incorporation or By-laws; (ix) terminate any license, lease or other contract or agreement that otherwise would have constituted a Material Contract pursuant to Section 4.13(a); (x) cancel or waive any claims or rights that, individually or in the aggregate, have a value in excess of $100,000; (xi) subject to Section 6.15, institute or settle any pending or threatened litigation, action or proceeding involving the Company or any of its directors, officers, employees or agents (in their respective capacities as such); (xii) issue or authorize the issuance of, or agree to issue or sell any shares of capital stock of any class (whether through the issuance or granting of options, warrants, commitments, convertible securities, subscriptions, rights to purchase or otherwise); (xiii) reclassify, combine, split, purchase or redeem any shares of its capital stock or purchase or redeem any rights, warrants or options to acquire any such shares; (xiv) make, revoke or change any Tax election, adopt or change any Tax accounting method or period, file any amended Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liabilityclaim or assessment, except that, individually or in each case as would not reasonably be expected to affect the Buyer; (h) instituteaggregate, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating are material to the Acquired Assets, Company or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Propertyits subsidiaries; or (jxv) enter into whether in writing or otherwise, agree to take in the future any Contract action that is otherwise prohibited to do any be taken pursuant to the preceding provisions of the foregoingthis Section 6.08.

Conduct of Business Pending the Closing. During the period from the date of this Agreement and continuing until the earlier of (i) the termination of this Agreement in accordance with its terms and (ii) the Closing (the “Interim Period”), except as may be required by Order of the Bankruptcy Court (provided that Sellers have not directly or indirectly petitioned, sought, requested or moved for such order of the ClosingBankruptcy Court or authorized, supported or directed any other Person to petition, seek, request or move for such Order of the Company shallBankruptcy Court), and Sellers shall cause each of its Subsidiaries to, carry on the Business in the ordinary course Ordinary Course of business and, Business except to the extent consistent therewith, use all commercially reasonable efforts to preserve otherwise agreed in writing by the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed ContractsBuyer. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of Notwithstanding the first sentence of this Section 7.16.1, during the period from the date of this Agreement through the Closing Date, the Company Interim Period Sellers shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminateenter into, modify, amend, modify terminate, waive any material rights or supplement obligations under or otherwise seek to reject any Material Contract or any other Contract that would be material to the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsBusiness; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign assign, or otherwise dispose of any of the Acquired AssetsAssets or permit the Company to purchase any assets outside of the Ordinary Course of Business; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or ) on the Acquired Assets and/or any of the Acquired Assets, other than as would not result in assets of the Companies or any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closingpart thereof; (d) incur institute, settle, compromise or permit agree to be incurred settle any Liability (i) material Proceeding (other than Accounts Payable any contested matter or proceeding in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent related to the ClosingChapter 11 Cases) before any Governmental Entity relating to the Company or (ii) any pending or threatened Claim that could give rise to Liabilities or could impose any binding obligation, whether contingent or realized, on the Company; (e) fail to replenish the Inventory and Supplies take any action outside of the Business in the ordinary course Ordinary Course of businessBusiness; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than license Intellectual Property Rights except for licenses in the ordinary course Ordinary Course of business consistent with past practiceBusiness; (g) make or rescind enter into any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methodsContract providing for capital expenditures with respect to the Business in an amount to be paid after the Closing of more than $25,000, policies or practicesindividually, or settle any Tax Liability$100,000, except in each case as would not reasonably be expected to affect the Buyeraggregate; (h) instituteauthorize, settle or commit, agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of the foregoing. Nothing contained in this Agreement is intended to give Buyer or its Affiliates, directly or indirectly, the right to control or direct the business of Sellers prior to the Closing.

Conduct of Business Pending the Closing. During From and after the period from the date execution and delivery of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without except as otherwise provided by the prior written consent of Buyerthe Purchaser, the Company covenants to: (a) abandon any rights under any conduct its business and operations in the usual and ordinary manner in which the same have heretofore been conducted and to use its best efforts to (i) preserve its business organization intact, (ii) keep available the services of its officers, employees, agents and distributors, and (iii) preserve its relationships with customers, suppliers and others having dealings with the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsCompany; (b) other than sales maintain all of Inventory its properties necessary for the conduct of the Company's business in good repair, order and condition, reasonable wear and use and damage by unavoidable casualty excepted, and to maintain insurance of such types and in such amounts upon all of its properties and with respect to the ordinary course conduct of its business or as are in effect on the disposition date of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assetsthis Agreement; (c) mortgage, pledge not (i) authorize or subject to Liens issue any shares of its capital stock (other than Permitted Liens), including any property, business held in its treasury) or any other securities except that authorization and issuance of up to 6 million shares to the Smitx/Xxxrxx Xxxup, a Georgia partnership; (ii) declare or pay any dividend or make any other distribution of or with respect to its shares of capital stock or other securities or purchase or redeem any shares of its capital stock or other securities; (iii) pay any bonus or increase the rate of compensation or pension, retirement or other fringe benefits of any of its salaried employees; (iv) make any general increase in the compensation or rate of compensation or pension, retirement or other fringe benefits payable or to become payable to its hourly-rated employees or enter into a new or modified union collective bargaining agreement except with the advance approval of the Acquired Assets, other than as would Purchaser which approval shall not result in be unreasonably withheld or delayed; (v) sell or transfer any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, its assets other than in the ordinary course of business consistent with past practice; business; (gvi) make or rescind obligate itself to make capital expenditures, other than contracts or commitments with respect to items or substitutes for items set forth in the Company's capital budget, individually in excess of $500 or aggregating more than $2,500; (vii) incur any material Tax election obligations or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, liabilities or enter into any settlement regarding transaction other than in the breach ordinary course of business; or infringement of, any material Intellectual Property; or (jviii) enter into any Contract to do any amend its articles of the foregoingincorporation or bylaws.

Conduct of Business Pending the Closing. During 6.1 Conduct of Business by the period from Seller Pending the Closing. The Seller covenants and agrees that, except as otherwise expressly required or permitted by the terms of this Agreement, between the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shallbusiness of the Corporation shall be conducted only in, and the Seller shall cause each not take any action except in, the ordinary course of business consistent with past practice. The Seller shall use its reasonable best efforts to preserve intact its business organizations, to keep available the services of its Subsidiaries tocurrent officers, carry on employees and consultants, and to preserve its present relationships with customers, suppliers and other Persons with which it has business relations. By way of amplification and not limitation, the Business Seller shall not, except as expressly required or permitted by the terms of this Agreement between the date of this Agreement and the Closing, directly or indirectly, do or propose or agree to do any of the following without the prior written consent of the Purchaser: (a) sell, pledge, dispose of, encumber, or authorize the sale, pledge, disposition, grant or encumbrance of any of the Purchased Assets, except in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contractspast practice; (b) sell, lease or transfer any of its properties or Purchased Assets (other than sales of Inventory in the ordinary course of business consistent with past practice), or acquire (including, without limitation, for cash or shares of stock, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets; make or obligate itself to make capital expenditures out of the disposition ordinary course of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (business consistent with past practice; other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase business consistent with past practice, incur any obligations or liabilities including, without limitation, any indebtedness for borrowed money, issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the salary obligations of any Identified Employee at Person, or after make any loans or advances, modify, terminate, amend or enter into any Contract other than as expressly required or permitted herein or in the time such person becomes an Identified Employeeordinary course of business consistent with past practice, or impose any security interest or other Lien on any of its assets other than in the ordinary course of business consistent with past practice; (gc) make pay any bonus to its officers or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practicesemployees, or settle any Tax Liabilityincrease the compensation payable or to become payable to its officers or employees or, except in each case as would not reasonably be expected presently bound to affect the Buyer; (h) institutedo, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights underseverance or termination pay to, or enter into any settlement regarding the breach employment or infringement ofseverance agreement with, any material Intellectual Property; orof its directors, officers or employees, or establish, adopt, enter into or amend or take any action to accelerate any rights or benefits which any collective bargaining, bonus, profit sharing trust, compensation, stock option, restricted stock pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees; (jd) take any action with respect to accounting policies or procedures other than in the ordinary course of business and in a manner consistent with past practices; (e) pay, discharge or satisfy any existing claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of due and payable liabilities reflected or reserved against in the Financial Statements, as appropriate, or liabilities incurred after the date thereof in the ordinary course of business and consistent with past practice, or delay paying any amount payable beyond thirty (30) days following the date on which it is due, except to the extent being contested in good faith; (f) enter into any Contract transaction or agreement with an Affiliate, except for such transactions or agreements expressly permitted herein; (g) agree, in writing or otherwise, to do take or authorize any of the foregoingforegoing actions or any action which would make any representation or warranty in Article 5 untrue or incorrect in any respect.

Conduct of Business Pending the Closing. During (a) Prior to the period from the date of Closing, except (i) as set forth on Schedule 7.2, (ii) as required by applicable Law, (iii) as otherwise specifically contemplated by this Agreement and continuing until or (iv) with the earlier prior written consent of the termination of this Agreement in accordance with its terms Parent (which consent shall not be unreasonably withheld, conditioned or the Closingdelayed), the Company shall, and shall cause each of its Subsidiaries to, carry on : (i) conduct the Business respective businesses of the Company and its Subsidiaries only in the ordinary course Ordinary Course of business Business; and, to the extent consistent therewith, (ii) use all commercially its reasonable best efforts to (A) preserve the Business intact present business operations, organization and goodwill of the Company and its Subsidiaries, (B) preserve the goodwill of and present relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers licensors and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date licensees of this Agreement through the Closing Date, the Company shall endeavor to maintain and its Subsidiaries and (C) keep available the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess services of the amounts set forth on Schedule 7.1. Company’s and its Subsidiaries’ present key employees. (b) Without limiting the generality of the first sentence of this Section 7.1foregoing, during the period from the date of except (w) as set forth on Schedule 7.2, (x) as required by applicable Law, (y) as otherwise specifically contemplated by this Agreement through or (z) with the Closing Dateprior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (ai) abandon issue, sell or redeem any shares of the Company’s or any of its Subsidiaries’ capital stock or other equity securities, (ii) issue, grant sell or redeem any securities convertible or exchangeable into, or options with respect to, warrants to purchase, rights to subscribe for, or stock appreciation rights, calls or commitments of any kind with respect to any shares of the Company’s or any of its Subsidiaries’ capital stock or other equity securities, (iii) effect any recapitalization, reclassification stock dividend, stock split or like change in the capitalization of the Company or any of its Subsidiaries; (iv) declare, set aside, pay or make any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock; (v) amend or modify the certificate of incorporation or by-laws or comparable organizational documents of the Company or any of its Subsidiaries; (vi) adopt a plan of liquidation, dissolution, merger, consolidation or other reorganization; (vii) other than as required by the terms and conditions of an existing Company Benefit Plan as of the date of this Agreement, (A) increase the annual level of compensation (including, without limitation, increases in salary, wage, bonus, severance or any benefits) of any employee or service provider of the Company or any of its Subsidiaries, other than increases in wages or base salary at times and in amounts in the Ordinary Course of Business consistent with past practice, (B) adopt, terminate, modify or amend any Company Benefit Plan (including, for the avoidance of doubt, any employment, severance, retention, bonus, change in control agreements or arrangements) or any plan, program, policy, agreement or arrangement that if entered into prior to the date hereof would constitute a Company Benefit Plan that would materially increase the liability of the Company or any of its Subsidiaries pursuant to any such Company Benefit Plan, other than offer letters that provide for no, sign-on bonus, severance, change in control or retention benefits, other than a cash sign-on bonus in an amount less than $150,000 in the aggregate and otherwise in an amount and on terms consistent with the Company’s past practice, with employees and service providers the Company is permitted to hire under subclause (E) below, (C) accelerate the vesting, lapse of restrictions, time of payment or funding of any payment, benefit or award to any current or former employee, director or service provider of the Company or any of its Subsidiaries, (D) terminate the employment of any employee or service provider having an annual level of compensation in excess of $200,000 other than for “cause” (as reasonably determined by the Company in the Ordinary Course of Business consistent with past practice), (E) hire any employee or other service provider having an annual level of compensation in excess of $200,000 or (F) enter into any collective bargaining agreement, union contract or similar labor arrangement; (viii) subject to any Lien any of the Assumed Contracts; terminateproperties or assets (whether tangible or intangible) of the Company or any of its Subsidiaries, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contractsexcept for Permitted Exceptions; (bix) enter into any Contract with any Related Party (other than with employees as permitted under clause (vii) above); (x) become legally committed to make any capital expenditures following the Closing Date in excess of $5,000,000 in the aggregate, except for any capital expenditures that are expressly contemplated in the capital expenditure budget provided to Parent prior to the date hereof; (xi) enter into or agree to enter into any merger or consolidation with any Person, or acquire the assets (other than Intellectual Property or inventory in the Ordinary Course of Business), properties, securities or business of any Person in excess of $1,000,000, individually, or $2,000,000, in the aggregate; (xii) incur or assume any indebtedness for borrowed money or guarantee any such indebtedness, other than in the Ordinary Course of Business; (xiii) other than sales of Inventory with respect to customers in the ordinary course Ordinary Course of business Business, loan or advance any funds to any Person such that the disposition amount of obsolete equipmentprincipal of loan advances owed by such Person shall be in excess of $250,000; (xiv) sell, leaseassign, license, surrender, relinquish, sell, transfer, conveyabandon, assign allow to lapse, convey or lease or otherwise dispose of any Acquired Assetsmaterial properties or assets (other than Intellectual Property) of the Company or any of its Subsidiaries except in the Ordinary Course of Business; (cxv) mortgage, pledge or subject fail to Liens maintain in full force and effect the Insurance Policies; (other than Permitted Liensxvi) settle any of the matters listed on Schedule 7.2(xvi), any propertycriminal Proceeding, business or any other Proceeding for an amount in excess of the Acquired Assets, other than as $1,000,000 or which would not result in any Liability involve a non-monetary remedy that would be reasonably likely to place material restrictions on the Company and its Subsidiaries, taken as a whole, or that would increase an Assumed Liability as be reasonably likely to prohibit or materially restrain the ability of or subsequent the Company to consummate the Closingtransactions contemplated hereby; (dxvii) incur grant any license, sublicense, immunity from suit, covenant not to xxx or permit assert or release under any Company Intellectual Property (except for non-exclusive licenses granted to be incurred customers in the Ordinary Course of Business to use products of the Company or its Subsidiaries), or sell, assign, transfer or otherwise encumber, any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the ClosingCompany Intellectual Property; (exviii) fail to replenish continue to prosecute or defend, abandon, cancel, fail to renew or maintain or otherwise allow to lapse any Company Intellectual Property, except for any such action with respect to any non-material Company Intellectual Property, in the Inventory and Supplies Ordinary Course of Business, where the Company reasonably determines that it is in the best interest of the Business in the ordinary course of businessCompany and its Subsidiaries to do so; (fxix) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course Ordinary Course of business consistent with past practice; Business, (gA) make accelerate, terminate, cancel, fail to exercise an available renewal option, amend, grant a waiver under or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, otherwise modify any existing rights under, Material Contract or enter into any settlement regarding the breach material Lease or infringement of, any material Intellectual Property; or (jB) enter into any Contract that would constitute a Material Contract or material Lease if in effect as of the date hereof; (xx) make, change or rescind any material election relating to do Taxes, settle any material audit, Proceeding or controversy relating to Taxes, waive the right to claim to a material refund of Taxes, consent to any extension or waiver of the statute of limitations period applicable to any material Taxes, material Tax Return or claim for material Taxes without prior consultation with Parent, file any amended Tax Return, or, except as required by applicable Law or GAAP, make any material change to any of its methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the foregoingpreparation of its most recent Tax Returns, other than to account for the transactions contemplated by this Agreement (including making appropriate adjustments to estimated tax payments after the date hereof); or (xxi) authorize, or commit or agree to do, anything prohibited by this Section 7.2. (c) Each of Parent and the Company covenants and agrees, on behalf of itself and its Subsidiaries, that between the date hereof and the Effective Time, it shall use its reasonable best efforts to consummate the transactions contemplated by this Agreement. In furtherance thereof, Parent shall not, and shall not permit any of its Subsidiaries to, agree to enter into a letter of intent, agreement in principle or definitive agreement for the acquisition of any business or person that is reasonably likely to prevent or materially delay its ability to satisfy the conditions to the Merger set forth in Section 8.1(c) (to the extent related to applicable Antitrust Laws) and Section 8.1(h) of this Agreement.

Conduct of Business Pending the Closing. During 5.1 Conduct of Business by the period from Companies Pending the Closing. Seller covenants and agrees that, except as otherwise expressly required or permitted by the terms of this Agreement including, without limitation, the requirement of Section 6.12, or except as expressly approved or directed by Purchaser, between the date of this Agreement and continuing until the earlier Closing Date, the businesses of the termination Companies and the Transferred Sub shall be conducted only in, and none of this Agreement in accordance with its terms the Companies or the ClosingTransferred Sub shall take any action except in, the Company shallordinary course of business consistent with past practice, and the Companies and the Transferred Sub shall not change their operations or policies. Seller shall use, and shall cause each the Companies and the Transferred Sub to use, reasonable best efforts to preserve intact the Companies' and the Transferred Sub's business organizations, to keep available the services of their current officers, employees and consultants, and to preserve their present relationships with customers, suppliers and other Persons with which they have business relations. By way of amplification and not limitation, none of the Companies or the Transferred Sub shall, except as expressly required or permitted by the terms of this Agreement, between the date of this Agreement and the Closing, directly or indirectly, do or propose or agree to do any of the following without the prior written consent or direction of Purchaser: (a) amend or otherwise change its Articles of Incorporation, By-laws or other organizational or governing documents; (b) issue, sell, pledge, dispose of, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of its Subsidiaries tocapital stock of any class, carry or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock or any other ownership interest; (c) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, on the Business or with respect to its capital stock or other securities, or reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other securities; (d) sell, lease, license or transfer any of its properties or assets other than in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer:past practice; (ae) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contractsmaintain any rights in Intellectual Property; (bi) acquire (including, without limitation, for cash or shares of stock, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership or other than sales business organization or division thereof or any assets, or make any investment either by purchase of Inventory stock or securities, contributions of capital or property transfer or, except in the ordinary course of business consistent with past practice, purchase any property or assets of any other Person, (ii) make or obligate itself to make capital expenditures in excess of $50,000, (iii) other than in the disposition of obsolete equipmentordinary course consistent with past practice, leaseincur any obligations or liabilities, licenseincluding, surrenderwithout limitation, relinquishIndebtedness, sell(iv) issue any debt securities or assume, transfer, convey, assign guarantee or endorse or otherwise dispose as an accommodation become responsible for, the obligations of any Acquired Assets; Person, or make any loans or advances, (cv) mortgagemodify, pledge terminate, or subject to Liens (other than Permitted Liens), enter into any property, business or any of the Acquired Assets, Contract other than as would not result in any Liability that would be provided herein or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; business consistent with past practice, or (fvi) increase impose any security interest or other Lien on any of its Assets or on the salary of any Identified Employee at or after the time such person becomes an Identified EmployeeLeased Premises, as applicable, other than in the ordinary course of business consistent with past practice; (g) make waive, cancel, compromise or rescind release any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except rights other than in each case as would not reasonably be expected to affect the Buyerordinary course of business consistent with past practice; (h) institute, settle or agree to settle make any litigation, action or Proceeding before any court or Governmental Entity relating to payment in respect of its liabilities other than in the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assetsordinary course of business consistent with past practice; (i) transfer increase the compensation payable or to become payable to its employees, officers or directors or, except as presently bound to do, grant or pay any rights underbonus, modify any existing rights underseverance or termination pay to, or enter into any settlement regarding the breach bonus, employment, change of control or infringement ofseverance agreement with, any material Intellectual Propertyof its directors, officers, or employees, or establish, adopt, enter into or amend or take any action to accelerate any rights or benefits with respect to any collective bargaining, bonus, profit sharing trust, compensation, stock option, restricted stock pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees; (j) make any loans to any of its officers, directors, employees, affiliates, agents or consultants or make any change in its existing borrowing or lending arrangements for or on behalf of any of such persons, whether pursuant to an Employee Benefit Plan or otherwise; (k) create any additional employee benefit or compensation plans, policies or arrangements or, except as may be required by law, to modify any Employee Benefit Plan; (l) conduct any operations or adopt any policies other than in the ordinary course of business consistent with past practice; (m) take any action with respect to accounting policies or procedures or make any adjustment to its books and records other than in the ordinary course of business and in a manner consistent with past practices; (n) pay, discharge or satisfy any existing claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of due and payable liabilities reflected or reserved against in its financial statements, as appropriate, or liabilities incurred after the date thereof in the ordinary course of business and consistent with past practice; (o) delay paying any account payable beyond the date on which it is due and payable except to the extent being contested in good faith; (p) enter into any transaction with Seller or any of his Affiliates; (q) make or pledge any charitable contributions in excess of $5,000 in the aggregate; (r) agree, in writing or otherwise, to take or authorize any of the foregoing actions or any action which would make any representation or warranty in Article III untrue or incorrect in any respect; or (js) enter into join in or consent to any Contract private restrictive covenant or other public or private restriction as to do any the present or future use or operation of the foregoingLeased Premises.

Conduct of Business Pending the Closing. During the period from (a) From the date of this Agreement and continuing hereof until the earlier of the termination of this Agreement in accordance with its terms or the Closing, except as otherwise required or permitted under this Agreement or the International Agreements or to the extent otherwise consented to by the Purchaser in writing, the Minerals Group will operate the Business, including payment of notes and accounts payable and efforts to collect notes and accounts receivable, in the ordinary course of business consistent with past practice. From the date hereof until the Closing, except as otherwise required or permitted under this Agreement or the International Agreements, and except for transactions occurring wholly between and among members of the Minerals Group (other than transactions with the Joint Ventures), without the prior written consent of Purchaser (which consent will not be unreasonably conditioned, withheld or delayed), neither the Company shall, and shall cause each nor any of its Subsidiaries to, carry on or Joint Ventures shall: (i) except for borrowings of Permitted Debt (x) necessary to operate the Business in the ordinary course of business andconsistent with past practice or (y) made in connection with Approved Investments, and except for issuances of Option Shares upon exercise of Company Options, issue or sell, or agree or commit to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement issue or sell (whether through the Closing Dateissuance or granting of options, the Company shall endeavor warrants, call, rights to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at purchase or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit otherwise) any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms stock of any Assumed Contract; class or fail to honor series or performany other equity interest, the Assumed Contractsor any bonds, debentures, notes, other evidences of indebtedness for borrowed money or other securities of any kind; (bii) other than sales materially write down or materially write up the value of Inventory any inventory, except for write-downs, write-ups and write-offs in the ordinary course of business consistent with past practice; (iii) (A) cancel or the disposition compromise any material claim, or (B) waive any other right of obsolete equipmentsubstantial value, leaseor provide a discount from a previously invoiced amount to any one customer in an amount in excess of $250,000, license, surrender, relinquish, or sell, transfer, convey, assign transfer or otherwise dispose of any Acquired Assets; individual Property or asset used in the Business having a book value, or disposed of for an amount, in either case in excess of $250,000, except, in the case of each of clauses (cA) mortgage, pledge or subject to Liens and (other than Permitted LiensB), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of businessbusiness consistent with past practice (including sales of inventory); (fiv) dispose of or permit to lapse any patent, application for patent, trademark, application for trademark, assumed name, servicemark, application for servicemark, trade name, copyright, application for copyright or license material to the operation of the Business, or dispose of or disclose to any Person (other than the Purchaser and its Representatives) any trade secret, formula, process or know-how material to the operation of the Business, except in each case in the ordinary course of business consistent with past practice; (v) grant any general uniform increase in the compensation of Employees (including any increase or change pursuant to any bonus, pension, profit-sharing, retirement or other plan or commitment), or any increase in any such compensation (including bonus) payable or to become payable to any officer or Employee, except in accordance with its customary and existing compensation policies; (vi) hire any employee with an annual base salary in excess of $150,000, or, hire any employee with special benefit or incentive programs outside of the ordinary course of business or not of general applicability or with a severance agreement that could result in a severance payment to such employee in excess or one year of such employee's base salary; provided, however, that for purposes of this clause (vi), relocation payments made to newly hired employees shall not be deemed to be a special benefit or incentive programs; (vii) except as required by GAAP, made any change in its accounting methods or practices; (viii) except as required by Applicable Law or by any Governmental Entity, and except as contemplated by Section 5.11 hereof or by Exhibit B hereto, take any action to establish or to amend in any material respect any Company Plan or International Plan or any Collective Bargaining Agreement; (ix) make or authorize (A) any investment other than in the ordinary course of business consistent with past practice in an amount (including the amount of any Identified Employee at Indebtedness incurred or after Liability assumed) which exceeds $250,000 individually or $1,000,000 in the time aggregate or (B) any capital expenditures not provided for in the 2005 Capital Expenditure Plan approved by the Board of Directors of World Minerals in January 2005, except in the case of clause (A) for a loan to or an equity investment in a Joint Venture (which equity investment increases the Minerals Group equity ownership in such person becomes Joint Venture) in an Identified Employeeamount which does not exceed $1,000,000 in the aggregate, provided that the Seller determines and notifies the Purchaser that alternative third party financing is not reasonably available, and except in the case of each of clauses (A) and (B) for Approved Investments; (x) make any purchase of inventory other than in the ordinary course of business consistent with past practice; (gxi) make agree to incur any obligation or rescind liability (absolute or contingent) in respect of the Business except in the ordinary course of business consistent with past practice and except for borrowings under the Credit Agreement, Approved Investments and investments and capital expenditures permitted under clause (ix) above; (xii) mortgage, encumber by deed of trust, pledge or incur any Lien, charge or other encumbrance with respect to any of the material Tax election Properties or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liabilityassets of the Business, except in each case as would not reasonably be expected to affect the Buyerordinary course of business consistent with past practice and except for the Credit Agreement Lien; (hxiii) institutefail to perform all of its obligations under, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind default under or terminate a material Permit(other than on the stated expiration date) any Material Contract, allowance, except in the ordinary course of business consistent with past practice (it being understood and agreed by the parties that disputes and warranty claims arising under Customer Contracts which are dealt with in the ordinary course of business shall not be considered failures to perform or credit (or application therefor) relating to the Business or the Acquired Assetsdefaults under Material Contracts); (ixiv) transfer amend, terminate or grant waive any rights undermaterial Permit with respect to the Business; (xv) permanently close, modify permanently downsize or permanently stop operations at any industrial site; (xvi) commit to move the existing rights underMilan facility of World Minerals Italia S.r.l. or secure any site for its potential future relocation; (xvii) except for Approved Investments, make a binding commitment to acquire any company or any business; (xviii) make any cash contribution to the SERP or to any Company Plan or any International Plan, except for cash contributions required to be made before Closing by Applicable Law; (xix) settle or make any settlement payment (other than in respect of a settlement entered into prior to the date of this Agreement) in respect of any of the matters set forth on Schedule 3.27(a); (xx) enter into any settlement regarding new Contract that would be a Material Contract as defined herein; (xxi) purchase any new insurance policy or amend or terminate any Company Insurance Policy, except for replacements or renewals of existing Company Insurance Policies under substantially the breach same terms and conditions (including comparable amount of premiums); (xxii) except as contemplated by Section 5.11 hereof or infringement ofby Exhibit B hereto, enter into any material Intellectual PropertyContract with any of its Affiliates or any director, officer, or shareholder of the Company or any of its Affiliates; or (jxxiii) enter into any Contract agree, whether in writing or otherwise, to do take any of the foregoingactions set forth in this Section 5.1(a). (b) From the date hereof until the Closing, except as otherwise required or permitted under this Agreement or the International Agreements, without the prior written consent of the Purchaser (which consent will not be unreasonably conditioned, withheld or delayed), the Company will not (i) declare or pay any Dividend, (ii) make any redemption, purchase or other acquisition of any shares of its capital stock, or (iii) amend its certificate of incorporation or bylaws, or merge with or into or consolidate with any other Person, subdivide or in any way reclassify any shares of its capital stock or change or agree to change in any manner the rights of its outstanding capital stock. (c) In the event that, from the date hereof until the Closing, any of the Company Insurance Policies is replaced as permitted by Section 5.1(a)(xxi) above or otherwise consented to by the Purchaser, Schedule 3.24 may be updated prior to the Closing to reflect such replacement). (d) The Company shall not, prior to Closing, issue a severance policy or xxxxx xxxxxxxxx in excess of the amount described in the Severance Plan in Exhibit B (except in accordance with an Employment Agreement) without the express written consent of the Vice President of Human Resources of Purchaser, which consent shall not be unreasonably withheld, delayed or conditioned. (e) The Company shall not without "cause" terminate the employment of any Employee who is a party to an Employment Agreement prior to Closing without the express written consent of the Vice President of Human Resources of Purchaser, which consent shall not be unreasonably withheld, delayed or conditioned. In the case of any other salaried exempt Employee, the Company shall inform (and consult with) the Vice President of Human Resources of Purchaser prior to terminating any such Employee (other than in the case of a termination for "cause"), but nothing contained herein shall be construed to restrict the Company's exercise of its absolute discretion with respect to the termination of any such salaried exempt Employee. (f) The Purchaser and the Seller acknowledge that the lease of the Nanterre, France office space expires on July 1, 2005, and agree to cooperate with one another to determine what action should be taken in connection with the renewal or extension of such lease.

Conduct of Business Pending the Closing. During the period The Sellers agree that from the date of this Agreement and continuing Effective Date until the earlier of the Closing and the termination of this Agreement in accordance with its terms the provisions of Section 2.5 hereof: (a) The Sellers shall cause the Business to be conducted in all material respects only in the Ordinary Course, except as required or the Closingexpressly contemplated by this Agreement, and use, and cause the Company shallto use commercially reasonably efforts to: (i) preserve intact the current business organization, assets and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course lines of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided (ii) maintain in effect all material Permits and (iii) maintain the goodwill and relationships of Governmental Authorities, customers and vendors and other Persons with whom the Business does business; provided, however, that nothing in this Section 7.8 shall restrict the foregoing ability of the Company to declare and pay any dividends and distributions to the Sellers at any time prior to the Closing. (b) The Sellers shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit the Company to take any of its Subsidiaries tothe following actions, without except as required or contemplated by this Agreement or with the prior written consent of the Buyer, which consent shall not be unreasonably conditioned, withheld or delayed: (ai) abandon amend the Organizational Documents of the Company; (ii) issue, sell, grant options or rights to purchase, pledge, authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, any capital stock of the Company, or any securities or rights under convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any capital stock of the Company, or any rights, warrants or options to purchase any capital stock of the Company; (iii) acquire or redeem, directly or indirectly, or amend the terms of, any shares of capital stock of the Company, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any shares of the capital stock of the Company, or any rights, warrants or options to purchase any shares of the capital stock of the Company; (iv) split, combine or reclassify capital stock of the Company; (v) (A) change any accounting methods, policies or practices (other than any such changes as are required by a change in GAAP or applicable Legal Requirements) on behalf of the Company, (B) make, revoke or amend any material Tax election on behalf of the Company, (C) file any amended Tax Return or surrender a right to a Tax refund on behalf of the Company, (D) enter into any closing agreement affecting any Tax liability or refund on behalf of the Company, (E) extend or waive the application of any statute of limitations regarding the assessment or collection of any income Tax on behalf of the Company, or (F) take, or cause or permit any other person to take, any action on behalf of the Company which could materially increase the Buyer’s or any of its Affiliates’ liability for Taxes; provided, however, that the Company may take any of the Assumed Contracts; terminateactions described in clauses (C), amend(D) or (E) above in connection with the contest of any Tax in accordance with Section 8.3 of this Agreement; (vi) enter into any material new line of business outside of the Business or enter into an agreement or arrangement that materially limits or otherwise materially restricts the ability of the Company or any successor thereto to engage or compete in any line of business or in any geographic area; (A) except in the Ordinary Course for Employees whose base salary is less than $75,000, increase or agree to increase the compensation (including any incentive compensation) or employee benefits payable or to become payable to any current or former officers, directors, employees or consultants of the Company or pay any amount not required to be paid to any such individual, (B) grant, accelerate or modify the period of exercisability or supplement vesting of equity compensation awards or any other bonuses (including long-term cash incentive awards) except in accordance with the terms thereof in effect on the Effective Date, (C) establish, adopt, enter into, materially amend or terminate or increase funding of any Plan or any plan, Contract, policy or program that would be a Plan if in effect as of the Effective Date, except for any such establishment, adoption, entry, amendment, termination or increase required by the terms of any Assumed Contractsuch Plan or arrangement or Legal Requirement; (D) except in the Ordinary Course for employees whose base salary is less than $75,000, hire, demote, promote, transfer or fail to honor for cause, terminate, or perform, otherwise change the Assumed Contractsterms of employment of any employee or (G) provide any employee loans; (bviii) incur, assume, guarantee or otherwise become liable for, any indebtedness in excess of $100,000 in the aggregate, other than sales pursuant to an agreement to which the Company is a party existing on the Effective Date; (ix) make, commit to make or authorize any capital expenditure or research and development expenditure to be made after the Closing in excess of Inventory $50,000 for any individual commitment and $100,000 for all commitments in the ordinary course aggregate; (x) release, assign, compromise, pay, discharge, waive, settle, agree to settle or satisfy any legal proceeding or dispute or other rights, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the release, assignment, compromise, payment, discharge, waiver, settlement or satisfaction of business claims, liabilities or obligations incurred in the disposition Ordinary Course, or that: (A) do not require any actions or impose any restrictions on the Business or impose any other material injunctive or equitable relief and (B) provide for the complete release of obsolete equipment, lease, license, surrender, relinquishthe Company of all claims; (xi) directly or indirectly, sell, transfer, conveylease, assign pledge, mortgage, encumber or otherwise dispose of any Acquired Assetsmaterial property or assets of the Company, other than sales of property and/or assets in the Ordinary Course; (cxii) mortgage(A) adopt a plan of complete or partial liquidation, pledge dissolution, merger, consolidation, business combination, restructuring, recapitalization or subject to Liens other reorganization, (B) acquire by merging or consolidating with, or by purchasing an equity interest in or portion of the assets of, or by any other than Permitted Liens)manner, any property, business or any corporation, partnership, joint venture, association or other business organization or division thereof, or acquire any capital stock or assets of the Acquired Assets, other than as would not result in any Liability person or (C) take or omit to take any action that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, cause any material Intellectual Property, including with respect to any registrations or applications for registration, to lapse, be abandoned or canceled, or fall into the public domain, other than actions or omissions in the Ordinary Course; (A) except in the Ordinary Course, enter into any Contract that would be deemed to be a Material Contract if it existed on the Effective Date or (B) materially amend or prematurely terminate, or waive any material right or remedy under, any Material Contract; (xiv) amend, terminate or allow to lapse any material Permit relating to the Company other than as required by applicable Legal Requirements; (xv) take any action or fail to take any action that is intended to delay or prevent the Closing; or (jxvi) enter into any a Contract to do any of the foregoing, or authorize, recommend, propose or announce an intention to do any of the foregoing.

Conduct of Business Pending the Closing. During the period from From the date of this Agreement and continuing until the earlier Closing Date, except as required or contemplated by this Agreement and for actions taken by Performance Packaging of the termination of this Agreement type set forth in accordance with its terms Exhibit 4.2 or the Closingotherwise consented to by Buyer in writing (which consent shall not be unreasonably withheld) or required by Law, the Company shall, and Parent shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, following to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyeroccur: (a) abandon any rights under any of Performance Packaging shall operate the Assumed ContractsBusiness only in the usual, regular and ordinary manner, on a basis consistent with past practice; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts;and (b) other than sales of Inventory Performance Packaging shall not grant any increase in the ordinary course of business salaries or the disposition of obsolete equipmentwages payable to any Transferred Employees or pay or agree to pay any pension, leaseretirement allowance or other employee benefit not required or permitted by any Benefit Plan, license, surrender, relinquish, sell, transfer, convey, assign except for increases in salaries or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business wages in the ordinary course of business;, as required under contractual arrangements (including individual employment agreements) in effect as of the date hereof or as required under applicable Law; and (fc) increase Performance Packaging shall not (i) issue or authorize the salary issuance of, or agree to issue, any of its capital stock or other equity securities, including through a stock split or stock dividend, (ii) effect a reverse stock split, combination of shares or other recapitalization or (iii) amend in any fashion its certificate or articles of incorporation (as applicable) or bylaws; and (d) Performance Packaging shall not sell, lease or otherwise transfer or dispose of any Identified Employee at of its material properties or after the time such person becomes an Identified Employeeassets, other than except in the ordinary course of business; and (e) Performance Packaging shall not acquire any portion of the equity securities, or any material portion of the assets, of any entity or other business organization or division thereof (whether directly or indirectly, or by merger, sale of stock, reorganization, recapitalization, joint venture or otherwise), except for the acquisition of inventory in the ordinary course of business; and (f) Performance Packaging shall not make any material change in the accounting methods used by it, except as required by GAAP or applicable Law; and (g) Performance Packaging shall not make any material adverse change in the payment or credit terms that it extends to its customers; and (h) Performance Packaging shall not approve, adopt or commit to any additional Benefit Plan or, except to the extent required to comply with applicable Law, amend any Benefit Plan; and (i) Performance Packaging shall use commercially reasonable efforts, consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change , to preserve intact its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected business organization and to affect preserve the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Propertyrelations and goodwill of those having business relationships with it; orand (j) Except for purchase or sales orders entered into in the ordinary course of business, Performance Packaging shall not enter into any Contract pursuant to do any which Performance Packaging has future monetary obligations in excess of the foregoing$100,000; and (k) Performance Packaging shall use commercially reasonable efforts to cause each insurance policy listed on Schedule 3.1(t) not to be canceled or terminated (unless such policy or arrangement is canceled or terminated and concurrently replaced with a policy or arrangement underwritten by a recognized insurance company with substantially similar coverage and having substantially similar deductibles and premiums).

Conduct of Business Pending the Closing. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the ClosingClosing (the “Interim Period”), the Company Sellers shall, taking into account business exigencies arising as a result of Sellers’ financial condition and shall cause each status as filers under Chapter 11 of its Subsidiaries tothe Bankruptcy Code, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of Notwithstanding the first sentence of this Section 7.16.1, during the period from the date of this Agreement through the Closing DateInterim Period, the Company Sellers shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer:Buyer (not to be unreasonably withheld, delayed or conditioned): (a) modify, amend or terminate any Assumed Contract; (b) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; Contract or fail to honor or perform, the perform any Assumed ContractsContract; (bc) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any interest in any Acquired AssetsAssets other than a de minimis part thereof in the Ordinary Course of Business; (cd) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or ) any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail except as required pursuant to replenish the Inventory and Supplies terms of any written agreements in effect on the Agreement Date or any Benefit Plan or as otherwise required by applicable Law, (i) enter into any new, or amend, terminate or renew any existing, employment, severance, consulting or salary continuation agreements with or for the benefit of any officers, directors or employees, in each case, other than (A) in the Ordinary Course of Business or (B) the renewal or extension of the Business Collective Bargaining Agreement with BGNE without modification for one year; (ii) accelerate the vesting or payment of the compensation payable or the benefits provided or to become payable or provided to any of the employees, or any current or former directors, officers, consultants or service providers of Sellers, or otherwise pay any amounts not due to such individual, including with respect to severance; (iii) adopt, amend or terminate any Benefit Plan (including any employment, severance, consulting or other individual agreement) or adopt or enter into any other employee benefit plan or arrangement that would be considered a Benefit Plan if it were in existence on the ordinary course date of businessthis Agreement; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or material Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit Transferable Permit (or application therefor) relating to the Business or the Acquired Assets; (ig) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach breach, infringement, misappropriation or infringement dilution of, any material Intellectual Property; (h) fail to maintain in full force and effect insurance policies covering the Acquired Assets, in form and amount consistent with past practice; (i) utilize, trade, sell or otherwise transfer any Allowances or Air Emissions Credit other than the surrender thereof to the extent required for the operation of the Facilities in compliance with applicable Law; or (j) enter into any Contract to do any of the foregoing.. Additionally, if Distrigas or the Distrigas Guarantor attempt or purport to terminate the Distrigas Agreement or the Distrigas Agreement Guaranty, or otherwise object to the assumption thereof by Sellers or the assignment thereof to Buyer, Sellers shall use commercially reasonable efforts to negotiate and litigate to cause the Distrigas Agreement and/or the Distrigas Guaranty Agreement to be assumed by Sellers and assigned to Buyer without modification

Conduct of Business Pending the Closing. During Seller will take no action except in the period from the date of this Agreement ordinary course, on an arm's length basis, and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shallall Applicable Laws and past custom and practice, and shall cause each of its Subsidiaries toSeller will not, carry on the Business in the ordinary course of business anddirectly or indirectly, do and Seller will not permit to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess occur any of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries tofollowing, without the prior written consent of BuyerMeritage: A. cancel or terminate or permit to be canceled or terminated Colonial's current insurance (aor reinsurance) abandon any rights under policies or permit any of the Assumed Contracts; terminatecoverage thereunder to lapse, amendunless simultaneous with such termination, modify cancellation or supplement lapse, replacement policies providing coverage equal to or greater than the terms coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect; B. sell, lease, encumber, or otherwise dispose of any Assumed Contract; of the Acquired Assets or fail to honor or performthe Optioned Real Property other than, in the case of lots and homes held for sale in the ordinary course, the Assumed Contracts; (b) other than sales sale of Inventory such lots or homes in the ordinary course of Colonial's business as previously conducted; C. without the prior written consent of Buyer or Meritage, acquire or enter into any option or other agreement to acquire any real property or other material assets; D. default under any material contract, agreement, commitment or undertaking; E. violate or fail to comply with any Applicable Laws; F. fail to maintain and repair the disposition Acquired Assets and the Owned Real Property in accordance with good standards of obsolete equipmentmaintenance and as required in any leases or other agreements pertaining thereto; G. enter into or modify any employment, leaseseverance or similar agreements or arrangements with, licenseor adopt or amend any bonus, surrenderprofit sharing, relinquishcompensation, sellstock option, transferpension, conveyretirement, assign deferred compensation, employment or otherwise dispose other benefit plan, trust, fund or group arrangement for the benefit or welfare of any Acquired Assetsofficers, directors, employees or consultants; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business H. except in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or historical practices, modify or settle terminate any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to of the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, Contracts or enter into any settlement regarding the breach new contracts that would become Acquired Contracts; I. acquire (by merger, exchange, consolidation, acquisition of stock or infringement ofassets or otherwise) any corporation, partnership, joint venture or other business organization or division or material assets thereof; J. issue or create any material Intellectual Property; or (j) enter into additional shares or other ownership interests in Colonial or issue or create any Contract to do warrants, obligations, subscriptions, options or other commitments under which any of the foregoing.additional shares or other ownership interests in Colonial might be authorized, issued or transferred;

Conduct of Business Pending the Closing. During the period from Interim Period, Seller will operate and maintain the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business Acquired Assets in the ordinary course of business andconsistent with Good Utility Practice, unless otherwise expressly contemplated by this Agreement or with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed). Good Utility Practice during the Interim Period shall include, but not be limited to, the following: to the extent consistent therewithSeller experiences a GADS Event, use all commercially reasonable efforts Seller will cure in accordance with Good Utility Practice the cause of such GADS Event for each Facility such that it reports in GADS as available an amount of capacity equal to preserve the Business intact and preserve the goodwill or greater than each Facility’s applicable Capacity Supply Obligation as of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1foregoing, during the period from the date of except as otherwise expressly contemplated by this Agreement through the Closing Dateor as set forth in Schedule 5.5, the Company Seller shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyerthe Buyer (which consent shall not be unreasonably withheld or delayed), during the Interim Period, with respect to the Acquired Assets or Assumed Liabilities: (a) abandon any rights under any of Except for Acquired Assets used at or consumed by the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory Facilities in the ordinary course of business consistent with Good Utility Practice, and except for sales or the disposition dispositions of obsolete equipmentor surplus assets in connection with the normal repair or replacement of assets or properties, lease, license, surrender, relinquish, (i) sell, transferlease (as lessor), conveylicense (as licensor), assign transfer or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, or (ii) encumber, pledge, mortgage or suffer to be imposed on any of the Acquired Assets any Lien other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the ClosingPermitted Liens; (db) incur or permit to be incurred Make any Liability (other than Accounts Payable or material change in connection the levels of Inventories customarily maintained by the Seller with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent respect to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary Acquired Assets, except for such changes that are consistent with Good Utility Practice, nor transfer, sell or otherwise acquire or dispose of any Identified Employee at or after the time such person becomes an Identified Employee, other than assets described in Section 2.1(c) except in the ordinary course of business consistent with past practicepractices; provided, however, that Seller shall consult with Buyer with respect to the purchase of any fuel Inventory during the Interim Period, the terms of which purchase shall be subject to Buyer’s prior written approval, not to be unreasonably withheld, conditioned or delayed; provided, further, that Seller shall consult with Buyer with respect to the purchase of any non- fuel Inventory during the Interim Period in excess of Five Hundred Thousand Dollars ($500,000) in the aggregate, the terms of which purchase shall be subject to Buyer’s prior written approval, not to be unreasonably withheld, conditioned or delayed; (gc) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant Terminate, make any rights waiver under, modify any existing rights underextend, materially amend, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of the foregoing.renew

Conduct of Business Pending the Closing. During The parties acknowledge that the period from Company is in the date process of this Agreement growing its business and continuing until the earlier of infrastructure with respect thereto. In conjunction with such growth and expansion, prior to the termination of this Agreement in accordance with its terms or the ClosingClosing Date, the Company shallwill, and shall will cause each of its Subsidiaries to, to (except as consented to in writing by Buyer or otherwise permitted under this Agreement and the Ancillary Documents): (a) carry on the Business its business in the ordinary course of business andand in a manner consistent with the Company’s business and expansion plans; (b) use commercially reasonable efforts to maintain and grow its properties and facilities, including those held under leases, in as good working order and condition as at present, ordinary wear and tear excepted; (c) not acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the extent assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof; provided however, that this Section 7.2(c) shall not apply to leasing activity consistent therewithwith the Company’s business and expansion plans; (d) not sell, lease, mortgage, encumber, pledge, xxxxx x xxxx on or otherwise dispose of, or agree to sell, lease (whether such lease is an operating or capital lease), encumber or otherwise dispose of any portion of its assets, other than in the ordinary course of the businesses of the Company or the Subsidiaries, consistent with the Company’s business and expansion plans; (e) except in the ordinary course of business, (i) not increase or agree to increase the compensation payable or to become payable to any of its officers, managers, directors or employees; (ii) not grant any severance or termination pay to, or enter into any employment or severance agreement with any officer, manager, director, or employee; (iii) not enter into any collective bargaining agreement; or (iv) not establish, adopt, enter into, amend or terminate any Employee Benefit Plan except as required by applicable Law or to maintain intended tax status or consequences; (f) keep in full force and effect present insurance policies or other comparable insurance coverage; (g) use all commercially reasonable efforts to maintain, preserve the Business intact and preserve the goodwill of and relationships with Governmental Entitiesexpand its business organization intact, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, retain its present officers and employees and maintain its relationships with suppliers, vendors, customers, creditors and others having business dealings relations with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer:it; (ah) abandon any rights take all actions reasonably necessary to perform its obligations under any of the Assumed Contracts; terminate, amend, modify or supplement and comply with the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (bSection 3.1(a) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent T2 EF Cogeneration Holdings LLC Agreement prior to the Closing; (di) incur not declare, set aside or permit pay any dividend or other distribution (whether in stock or property) with respect to any of its outstanding equity interests, or make any issuance, reclassification, redemption, purchase or other acquisition of any of its equity securities; (j) not engage in any business activity other than related to the business anticipated to be incurred conducted by the Company or its Subsidiaries at and after the Closing Date; (k) except for borrowings under the Credit Agreement or in the ordinary course of the business, not incur any Liability new indebtedness for borrowed money; (l) not enter into any Contract that would constitute a Material Contract (other than, in the case of any Material Contract described in clause (a) or (b) of the definition thereof, any such Contract that has a term less than Accounts Payable one year and aggregate expected annual receipts or payments of less than $3,000,000); (m) not make any change in connection accounting principles, methods or policies (except as may be required by changes in applicable Law or changes in GAAP), or make or change any election, adopt or change any method of accounting, or make any other change with the performance of Assumed Contracts) respect to Taxes that would be binding on the Company or would increase an Assumed Liability as of or subsequent to any Subsidiary for any taxable period that includes any period after the Closing; (en) fail to replenish the Inventory and Supplies not cancel or compromise any claim or amend, modify, cancel, terminate, relinquish, waive or release any Material Contract or material right of the Business Company or any Subsidiary, except in the ordinary course of business; (fo) increase the salary not make or commit to make any capital expenditures or issue any new “authorities for expenditure,” in either case in excess of $250,000 or make or commit to make any Identified Employee at or after the time such person becomes an Identified Employeeindividual operating expenditure in excess of $250,000, other than in the ordinary course of business consistent with past practicecapital expenditures, new “authorities for expenditure” and operating expenditures set forth on Schedule 7.2(o) to which the parties hereby agree; (gp) make not amend the organizational documents of the Company or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of the foregoingSubsidiaries; and (q) not authorize, or agree in writing or otherwise to take, any action in contravention of this Section 7.2. For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, the Parties agree that the failure of any agreement or arrangement entered into, or action taken by, the Company or any Subsidiary after the date hereof and prior to the Closing Date in accordance with this Section 7.2 to appear on the Schedules shall not constitute a breach of the representations and warranties of the Company or Seller contained herein.

Conduct of Business Pending the Closing. During the period from The Company agrees that between the date of this Agreement and continuing until the earlier Effective Time, except as set forth in Section 5.1 of the termination Company Disclosure Letter, as contemplated by any other provision of this Agreement or as required by applicable Law, by a Governmental Entity of competent jurisdiction or by the rules or requirements of the New York Stock Exchange, unless Parent shall otherwise agree in accordance with its terms writing (which agreement shall not be unreasonably withheld, delayed or the Closingconditioned), the Company shallwill, will cause each Company Subsidiary to, and shall will use its commercially reasonable efforts to cause each of its Subsidiaries VELCO to, carry on the Business (a) conduct its operations only in the ordinary course of business andas heretofore conducted utilizing good utility practices, (b) comply in all material respects with all Laws, orders and Company Permits applicable to the extent consistent therewiththem, and (c) use all its commercially reasonable best efforts to preserve the Business substantially intact its business organization and preserve the goodwill of and maintain satisfactory relationships with third parties and Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others Entities having significant business dealings with it and to keep available the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date services of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value its key officers and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1employees. Without limiting the generality foregoing, except as set forth in Section 5.1 of the first sentence of this Section 7.1Company Disclosure Letter, during the period from the date as contemplated by any other provision of this Agreement through or as required by applicable Law, by a Governmental Entity of competent jurisdiction or by the Closing Daterules and requirements of the New York Stock Exchange, the Company shall not, and shall not permit any of its Subsidiaries Company Subsidiary to, between the date of this Agreement and the Effective Time, do any of the following without the prior written consent of Buyer:Parent (which consent shall not be unreasonably withheld, delayed or conditioned): (ai) abandon amend its Articles of Association, By-laws or equivalent organizational documents; (ii) issue or authorize the issuance, pledge, transfer, subject to any Lien, sell or otherwise encumber or dispose of, any Equity Interests in the Company or any Company Subsidiary, or securities convertible into, or exchangeable or exercisable for, any such Equity Interests, or any rights under of any kind to acquire any such Equity Interests or such convertible or exchangeable securities, other than (A) grants of Company Options, Restricted Stock and RSUs pursuant to Company Equity Plans with an aggregate value at the time of grant of less than $2,500,000, (B) the issuance of Shares upon the exercise of Company Options outstanding on the date hereof and the vesting of RSUs outstanding as of the Assumed Contracts; terminate, amend, modify date hereof or supplement otherwise permitted to be granted hereunder in accordance with their terms and (C) the issuance of Shares pursuant to the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsCompany’s Dividend Reinvestment Plan; (biii) other than sales sell, pledge, dispose of, transfer, lease, license or encumber any material property or assets of Inventory the Company or any Company Subsidiary, except pursuant to existing Scheduled Contracts and except for (x) dispositions of obsolete equipment or assets, in each case, in the ordinary course of business consistent with past practice, or (y) dispositions in amounts not to exceed $2,000,000 individually or $7,500,000 in the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assetsaggregate; (civ) mortgagedeclare, pledge set aside, make or subject pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to Liens any of its capital stock (other than Permitted Liens(A) regular quarterly cash dividends paid by the Company in a manner consistent with past practice and in an amount per share of Company Common Stock not more than (1) on or prior to November 30, 2011, the last quarterly cash dividend paid by the Company prior to the date hereof, so long as the aggregate amount of cash dividends paid pursuant to this clause (A)(1) does not exceed $0.46 per share, and (2) following November 30, 2011, $0.01, (B) dividends payable on any shares of the Company Preferred Stock pursuant to their terms, (C) dividends paid by a wholly-owned Company Subsidiary to the Company or another wholly-owned Company Subsidiary or (D) dividend equivalent rights on RSUs payable by the Company pursuant to the Company Equity Plans), enter into any propertyagreement with respect to the voting or registration of its Equity Interests or reduce its authorized capital; (v) other than (A) in the case of wholly-owned Company Subsidiaries, business (B) in the case of cashless exercises of Company Options, or Tax withholdings on the vesting or payment of Restricted Stock and RSUs or (C) the redemption of Company Preferred Stock pursuant to the terms of such Company Preferred Stock, reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its Equity Interests; (vi) merge or consolidate the Company or any Company Subsidiary with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Acquired AssetsCompany or any Company Subsidiary; (vii) acquire (including by merger, consolidation or acquisition of stock or assets) any interest in any Person or any assets, other than as would acquisitions of assets in the ordinary course of business for consideration that is individually not result in any Liability that would be excess of $2,000,000, or would increase an Assumed Liability as in the aggregate not in excess of or subsequent to the Closing$7,500,000; (dviii) incur any indebtedness for borrowed money or permit to be incurred issue any Liability debt securities, or assume or guarantee the obligations of any Person (other than Accounts Payable or a wholly-owned Company Subsidiary) for borrowed money, except (A) in connection with refinancings of existing indebtedness for borrowed money as such indebtedness matures upon market terms and conditions, (B) for borrowings in the performance ordinary course of Assumed Contractsbusiness under the Company’s existing credit facilities (or under refinancings of existing credit facilities pursuant to clause (A)) or (C) indebtedness for borrowed money that would be is prepayable at any time without penalty or would increase premium, in an Assumed Liability as of or subsequent amount not to exceed $7,500,000 in the Closingaggregate; (eix) fail make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Company Subsidiary) in excess of $7,500,000 in the aggregate; (x) except to replenish the Inventory and Supplies extent required by the existing terms of the Business any Company Benefit Plan: (A) other than in the ordinary course of business, increase the compensation or benefits payable or to become payable to its directors, officers or employees; (B) grant any rights to severance or termination pay to, or enter into or amend any employment or severance agreement with, any director, officer or, other than in the ordinary course of business, employee of the Company or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, employment, termination, severance or other plan or agreement for the benefit of any director, officer or, other than in the ordinary course of business, employee; or (C) take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; (fxi) increase make any material Tax election or settle or compromise any material liability for Taxes or prepare or cause to be prepared any material Tax Returns in a manner which is inconsistent with the salary past practices of any Identified Employee at of the Company or after any Company Subsidiary, as applicable, with respect to the time treatment of items on such person becomes an Identified EmployeeTax Returns; (xii) make any material change in accounting policies or procedures, other than as required by GAAP; (xiii) make or commit to make any capital expenditures in the period from the date hereof until December 31, 2011, or in the 12 month period ending December 31, 2012, that in the aggregate exceed the Company’s capital expenditures budget as disclosed in Section 5.1(xiii) of the Seller Disclosure Letter for such period plus $5,000,000 in either such period; provided, however, that notwithstanding the foregoing, the Company and any Company Subsidiary shall be permitted to make emergency capital expenditures in any amount (A) required by a Governmental Entity or (B) that the Company determines is incurred in connection with the repair or replacement of facilities destroyed or damaged due to casualty or accident or natural disaster or other force majeure event necessary to maintain or restore safe, adequate and reliable electric service to customers; provided, that the Company shall use commercially reasonable efforts to consult with Parent prior to making or agreeing to make any such expenditure; (xiv) terminate or permit any material Company Permit to lapse, other than in accordance with the terms and regular expiration of any such Company Permit, or fail to apply on a timely basis for any renewal of any renewable material Company Permit; (xv) (A) enter into, terminate, renew, amend or modify in any material respect Company Scheduled Contract, other than in the ordinary course of business consistent with past practice, or (B) waive, release, assign, pay, discharge, settle, or satisfy any material claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the waiver, release, assignment, payment, discharge, settlement or satisfaction of any such claims, liabilities or obligations in the ordinary course of business consistent with past practice, or as required by their terms as in effect on the date of this Agreement; (gxvi) make plan, announce, implement or rescind effect any material Tax election reduction in force, lay-off, early retirement program, severance program or take any material Tax position other program or effort concerning the termination of employment of employees of the Company (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except other than employee terminations in each case as would not reasonably be expected to affect the Buyerordinary course of business); (hxvii) hire an officer-level employee or terminate the employment, other than for cause, of any officer-level employee. (xviii) institute, settle settle, or agree to settle any material litigation, action investigation, proceeding, or Proceeding other claim pending or threatened before any arbitrator, court or other Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired AssetsEntity; (ixix) transfer except for transactions between (A) the Company and wholly-owned Company Subsidiaries or grant (B) among wholly-owned Company Subsidiaries, redeem, repurchase, defease, cancel or otherwise acquire any rights underindebtedness for borrowed money of the Company or any of the Company Subsidiaries, modify other than (x) at or within one hundred twenty (120) days of stated maturity, (y) pursuant to any existing rights under, required amortization payments and mandatory prepayments or (z) as permitted by clause (viii) above; (xx) (A) permit any material change in policies governing or otherwise relating to energy price risk management or marketing of energy other than as a result of acquisitions or capital expenditures permitted pursuant to Section 5.1(xiii) or (B) enter into any settlement regarding physical commodity transactions, exchange-traded futures and options transactions, over-the-counter transactions and derivatives thereof or similar transactions other than as permitted by the breach or infringement of, any material Intellectual PropertyTrading Guidelines; or (jxxi) authorize or enter into any Contract to do any of the foregoing. Parent will, promptly following the date hereof, designate two individuals from either of whom the Company may seek approval to undertake any actions not permitted to be taken under this Section 5.1, and will ensure that such persons will respond, on behalf of Parent, to the Company’s requests in an expeditious manner but in any event no later than two (2) Business Days after the Company’s request.

Conduct of Business Pending the Closing. During the period from the date of this Agreement Parent, Holdings and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, jointly and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact severally covenant and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1agree that, during the period from the date of this Agreement through until the Closing DateClosing, except (i) for any actions taken by Parent, Holdings or the Company that are necessary to consummate the Reorganization (as expressly set forth in, or reasonably contemplated by, Section 6.09 of the Disclosure Letter), (ii) with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), (iii) for actions taken in response to any emergency (but only to the extent of any such emergency, and for no longer than as required by such emergency), (iv) as required by applicable Law, or (v) as set forth in Section 5.01 of the Disclosure Letter: (a) Parent and the Company shall, and the Company shall cause each of the Subsidiaries (excluding the Excluded Subsidiaries) to (i) conduct its business in the ordinary course of business and (ii) use reasonable best efforts to preserve intact their respective business organizations and maintain appropriate relationships with Governmental or Regulatory Authorities, licensors, distributors, customers, suppliers, contractors, and others having material business relationships with it, and to comply in all material respects with all applicable Laws; (b) The Company shall not, and the Company shall cause the Subsidiaries (excluding the Excluded Subsidiaries) not to: (i) sell, lease, transfer, encumber, pledge or permit to become subject to any Lien other than a Permitted Lien, or dispose of, any assets, rights or securities, other than (A) the sale of obsolete, damaged or broken equipment, (B) items or materials not exceeding $250,000 in the aggregate, (C) as permitted by clause (xx) below, or (D) as contemplated by Section 6.16; (ii) acquire any asset in excess of $500,000 in the aggregate, or acquire any capital stock or other equity interests of any business or any corporation, partnership, limited liability company, unincorporated organization, trust, joint venture, association or other business organization or division thereof, or acquire all or a substantial portion of the assets, of any such entity in a single transaction or a series of related transactions, other than assets acquired pursuant to the Scheduled Capital Expenditures and electricity and other products provided by utilities pursuant to a tariff or rate of general applicability; (iii) amend or propose to amend its certificate of formation, operating agreement or other governing instruments; (iv) declare, set aside, make or pay any non-cash dividend or other non-cash distribution with respect to its membership interests or capital stock; (v) issue, sell, encumber, dispose of or authorize, propose or agree to the issuance, sale, encumbrance or disposition by it of, any of its Subsidiaries tomembership interests or capital stock or any options, without warrants, securities or other rights that are directly or indirectly convertible into, or exercisable or exchangeable, for any capital stock, or redeem, split, combine, reclassify, purchase or otherwise acquire any outstanding shares of the prior written consent capital stock or membership interest of Buyer: (a) abandon any rights under any of the Assumed ContractsCompanies or make any other change in the capital structure of any of the Companies; (vi) (A) establish, adopt, enter into, amend or terminate any Company employee benefit plan or (B) pay or agree to pay any pension, retirement allowance or other employee benefit not required by any Benefit Plan in effect on the date hereof (or Benefit Plan under a replacement collective bargaining agreement entered into in accordance with clause (vii) below) to any director, officer or employee, whether past or present, that would impose Liability on the Companies; (vii) (A) hire any Company Non-Union Employee or Union Employee, except as to Company Non-Union Employees, an employee who will be terminated from employment by the Companies prior to the Closing; terminateand as to Union Employees, an employee hired on a short-term, contract or temporary basis and who would be terminated prior to the Closing, (B) amend any employment, severance or similar agreement or plan or enter into any new employment, severance or similar agreement or plan, (C) other than renewal of an expiring collective bargaining agreement or entry into a new collective bargaining agreement to replace an expiring collective bargaining agreement, amend, modify or supplement revise any collective bargaining agreement or enter into a new collective bargaining agreement; provided, however, that (1) in any such contract renewal or replacement negotiated between the date of this Agreement and the Closing, the Companies will advise Purchaser regularly concerning the progress and any material developments of such negotiations; (2) none of the Companies will enter into any new agreement that applies new terms to Union Employees that are materially more costly or materially different than new terms that apply to other employees covered by the collective bargaining agreement (for example, none of the Companies will agree to more costly new wage or benefit terms applicable to Union Employees when compared to the new wage or benefit terms applicable to other employees covered by the collective bargaining agreement); and (3) Parent, Holdings and the Companies will not object to Purchaser entering into discussions with the labor union, following the first public announcement of the transactions contemplated by this Agreement and prior to the Closing, regarding post-Closing issues, (D) 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 any Assumed Contractof the Companies (other than routine employee terminations for cause) who (1) Purchaser notifies Parent prior to the date that is forty (40) days following the date of receipt by Purchaser of the access and records described in Section 9.01(a)(i) that Purchaser wishes to retain following the Closing or (2) Parent reasonably anticipates is necessary to comply with the provisions of Section 5.01(a) and to perform the services contemplated by the Transition Services Agreement, (E) transfer any employees of any of the Companies to Affiliates of Parent (other than the Companies) prior to the date that is forty (40) days following the date of receipt by Purchaser of the access and records described in Section 9.01(a)(i), or (F) transfer any employees of any Affiliates of Parent (other than the Companies) to the Companies except as set forth in Section 9.01(a)(iii); provided, however, that, at or fail prior to honor the Closing, Parent and Holdings will use their respective reasonable best efforts to assign any such employees that Purchaser wishes to retain following the Closing to the roles or perform, the Assumed Contractspositions reasonably requested by Purchaser; (bviii) except for Scheduled Capital Expenditures and expenditures up to $500,000 in the aggregate relating to the business or operations of the Companies that constitute necessary repairs due to breakdown or casualty made in response to a business emergency or other unforeseen operational matters, make or incur any capital expenditures, or, in either case, enter into any binding commitment or contract to make such expenditures; (ix) other than sales the Transaction Documents, (A) terminate or assign any Material Contract, (B) amend, modify, supplement or waive any material provision of any Material Contract or (C) except for agreements entered into after the date of this Agreement and with a termination or expiration date prior to the Closing that does not result in Liability for any of the Companies, enter into any agreement that, if existing on the date of this Agreement, would be a Material Contract; (x) incur any Indebtedness except (A) borrowings from its Affiliates (other than the Companies) that will be repaid or forgiven prior to the Closing, and (B) collateral obligations under Contracts existing as of the date of this Agreement or entered into after the date of this Agreement as permitted by this Section 5.01(b); (xi) settle, compromise or otherwise resolve any Legal Proceedings or other Liabilities that would result in any Liability in excess of $250,000 in the aggregate or that would result in any Liability to or impose any obligation on the Companies following the Closing, or settle, compromise or waive any claims or rights of substantial value; (xii) make any material changes in its reporting for Taxes or its Tax accounting methods; make or rescind any Tax election; file any amended Tax Return or a claim for refund of Taxes with respect to the income, operations, or property of any of the Companies; make any material change to its method of reporting income, deductions, or other Tax items for Tax purposes; settle or compromise any material Tax Liability; prepare any Tax Return in a manner that is inconsistent with past practice of any of the Companies, with respect to the treatment of items on such Tax Return; or incur any Liability for Taxes other than in the ordinary course of business; in each case other than for tax periods ending on or before the Closing and for which Taxes Parent remains liable hereunder or which would not materially increase the Tax Liability of the Companies for any Post-Closing Tax Period; (xiii) enter into any transaction with an Affiliate not expressly permitted by this Agreement; (xiv) adopt a plan of complete or partial liquidation (or resolutions providing for or authorizing such liquidation), dissolution, merger, consolidation, restructuring, recapitalization or reorganization of any of the Companies; (xv) (A) make any material change in the levels of Inventory or Fuel Inventory customarily maintained by the Companies, consistent with past practice or (B) sell, transfer, assign or convey any Emission Allowances, provided that nothing in this clause (B) shall restrict the use or consumption of, or obligation to retire, Emission Allowances in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance use or consumption of Assumed Contracts) that would be or would increase an Assumed Liability as the supplies of or subsequent coal related to the Closingoperation of the Generating Plants as contemplated by Section 6.21; (exvi) fail to replenish make any material payment as it comes due except in connection with a good faith dispute or accelerate or decelerate the Inventory and Supplies making of any payment or the Business in the ordinary course receipt of businessany accounts receivable or Liability; (fxvii) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice, fail to maintain in full force and effect all outstanding letters of credit, guarantees or other forms of credit support required for the businesses of any of the Companies; (gxviii) fail to maintain in full force and effect insurance policies covering the businesses of any of the Companies in a form and amount consistent with the current insurance programs (except to the extent any such policies expire in accordance with their term and are replaced with policies consistent with Good Industry Practices); (xix) agree to any covenants, conditions, restrictions affecting, or rezoning of, the Real Property that would prohibit, limit, restrict, or materially change the current use and occupancy of the Real Property or Improvements or limit or restrict the conduct of the business of any of the Companies as currently being conducted; (xx) make purchases or rescind sales of power, gas or related products which would bind any material Tax election of the Companies beyond one Business Day after the Closing Date, except as permitted in Section 5.01(d) below; or (xxi) authorize any of, or commit or agree in writing or otherwise to take any material Tax position of the actions precluded by this Section 5.01(b). (unless required c) Parent, Holdings, the Company and Purchaser acknowledge and agree that without, however, limiting any provision in this Section 5.01 or elsewhere in this Agreement: (i) nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct the Company, any Subsidiary or any of their respective operations prior to the Closing Date and (ii) prior to the Closing Date, Parent and Holdings shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Company, the Subsidiaries and their respective operations. (d) Parent shall cause the Companies to enter offers for the available capacity of each generation resource unit of the Companies in PJM’s 2013/2014 Base Residual Auction, and any other PJM Incremental Auction (as defined by lawPJM), in the ordinary course of business and in accordance with all applicable Laws and the rules of PJM. (e) Parent and Holdings shall cause Conectiv Atlantic Generation, LLC and Conectiv Delmarva Generation, LLC to prepare and file with FERC (i) on or file any Tax Return before May 1, 2010, FERC rate schedule filings to collect cost-based charges for reactive power for the Hay Road 5-8 Generating Plants and (ii) on or change its fiscal year or financial or Tax accounting methodsbefore May 15, policies or practices2010, or settle any Tax LiabilityFERC rate schedule filings to collect cost-based charges for reactive power for the Cumberland Generating Plants. (f) The Company shall, except and the Company shall cause the Subsidiaries (other than the Excluded Subsidiaries) to: (i) continue the construction of the Delta Project in accordance with the Delta Construction Budget and Good Construction Practices, in each case as would not in all material respects; (ii) consult with Purchaser, and consider in good faith any comments and suggestions of Purchaser, with respect to all material acts and decisions in connection with the Delta Project, including, without limitation, any proposals to third parties that could reasonably be expected to affect materially impact the Buyerrights and obligations of the Companies with respect to the Delta Project. During the period from the date of this Agreement until the Closing, Parent will provide Purchaser with monthly reports and weekly updates relating to the Delta Project, including updates with respect to changes to the Delta Construction Budget. Without limiting the generality of the foregoing, Purchaser will be notified of, and provided the opportunity to participate as an observer in, any third party meetings or negotiations, including those with any third party providing legal, engineering, procurement and/or construction services for the Delta Project. In addition, during the period from the date of this Agreement until the Closing, Purchaser, at its sole cost and risk, will be allowed to designate one Representative to be on-site at the Delta Project during normal business hours and without significant interference with the operations or construction of the Delta Project. Such employee may only observe the operations and construction of the Delta Project, and may not direct the activities of any employees, consultants or contractors of the Companies or make any decisions relating to the Delta Project; (hiii) institutecause CES to (A) refrain from providing any notice of intention not to exercise the option described in the Xxxxxx Option Agreement, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating (B) pay all option payments due and payable pursuant to the Acquired AssetsXxxxxx Option Agreement, (C) assign the Xxxxxx Option Agreement to one of the Companies, as designated by Purchaser within 60 days following the date of this Agreement and (D) use its reasonable best efforts to extend the Xxxxxx Option Agreement through December 31, 2011; provided, however, that if CES is unable to extend the Xxxxxx Option Agreement through December 31, 2011, then the Company shall, at Purchaser’s request and sole cost and expense, cause CES to exercise the option described in the Xxxxxx Option Agreement; provided further, however, that in no event shall such efforts to extend or modify in any manner that is adverse to exercise the Business or Xxxxxx Option Agreement delay the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets;Closing; and (iiv) transfer or grant any rights under, modify any existing rights under, or cause one of the Companies approved by Purchaser to enter into any settlement regarding an option agreement with Potomac Electric Power Company (the breach or infringement of“Potomac Option Agreement”) to be substantially in the form attached hereto as Exhibit G, any material Intellectual Property; or (j) pursuant to which such Subsidiary shall have the option, exercisable by such Subsidiary for nominal value, to enter into any Contract a definitive written lease agreement as contemplated by the Letter of Intent, dated March 16, 2007, between CES and Potomac Electric Power Company for rental value and on terms otherwise acceptable to do any of the foregoingPurchaser.

Conduct of Business Pending the Closing. During (a) Subject to paragraph (c) below, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the ClosingInterim Period, the Company shall, and the Sellers shall cause each of its Subsidiaries Acquired Company to, carry on the Business (x) operate in the ordinary course of business and, to the extent consistent therewith, with past practices and (y) use all commercially reasonable efforts to preserve (A) preserve, maintain and protect the Business assets and properties of the Acquired Companies, and keep intact their respective business organizations and preserve goodwill, and keep available the goodwill services of their respective officers and key employees, (B) maintain the Permits, and (C) maintain all material relationships with Governmental Entities, customers, suppliers, partnersindependent system operators, lessors, licensors, licensees, contractors, distributors, agents, officers and employees Governmental Entities and others having business dealings relationships with them. Without limiting the Businessforegoing, provided that except as otherwise contemplated by this Agreement (including the foregoing ECP Equity Transfers and Section 6.13), as required by Law, as set forth in Section 6.02 of the Company Disclosure Schedule or as consented to in writing by Parent, which consent shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period be unreasonably withheld, conditioned or delayed, from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing DateClosing, the Company shall not, and the Sellers shall cause each Acquired Company not permit any of its Subsidiaries to, without do the prior written consent of Buyerfollowing: (ai) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipmentsell, lease, licensetransfer, surrender, relinquish, sell, transferpledge or otherwise encumber, convey, assign abandon, cancel or otherwise dispose of any Acquired Assets; (c) mortgageassets, pledge rights, securities or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assetsbusiness, other than as would not result (A) sales or dispositions of electric products or Derivative Products, in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employeeeach case, other than in the ordinary course of business consistent with past practice, (B) sales or dispositions already contracted by an Acquired Company prior to the date of this Agreement, (C) sales or dispositions of items or materials in an amount not in excess of $2,500,000.00 in the aggregate or (D) sales, transfers, conveyances abandonments, cancelations or other dispositions of obsolete fixtures, equipment and tangible personal property; (gii) (A) fail to maintain its existence or merge or consolidate with any other Person or acquire all or substantially all of the assets of any other Person, or (B) make any acquisition of any assets, business, stock or rescind any material Tax election other properties in excess of $2,500,000 individually or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except $5,000,000 in each case as would not reasonably be expected to affect the Buyeraggregate; (hiii) institute(A) enter into, settle assume, terminate, assign, partially or agree to settle completely amend, grant any litigationwaiver of any material term under, action or Proceeding before grant any court or Governmental Entity relating to the Acquired Assetsmaterial consent with respect to, or modify fail to comply in any manner material respect with, any Material Contract or Contract that is adverse would be a Material Contract if in existence on the date hereof other than (1) entering into Contracts otherwise required or permitted to the Business or the Acquired Assets, rescind or terminate a material Permit, allowanceimplement another provision of this Section 6.02(a), or credit (2) participating in capacity auctions in the ordinary course of business consistent with past practice or application therefor(B) relating to the Business or the amend any Organizational Document of any Acquired AssetsCompany; (iiv) issue, reserve for issuance, pledge or otherwise encumber, redeem, transfer or grant any rights under, modify any existing rights undersell, or enter into any settlement regarding arrangement to do any of the breach foregoing, with respect to any of its respective equity interests or infringement ofany options, warrants or rights of any kind to acquire membership interests or any other class of debt of equity securities, other than the redemption of Interests held indirectly by employees of an Acquired Company in connection with the termination of their employment pursuant to the terms of award agreements governing such Interests; (v) liquidate, dissolve or otherwise wind up its business or operations; (vi) purchase any equity securities of any Person; (vii) amend or modify its respective Organizational Documents; (viii) except as required by changes in applicable Law or changes in GAAP, change any material Intellectual Propertyaccounting method, principle or practice; (ix) effect any recapitalization, reclassification, split or other change in its respective capitalization; (x) engage in any material new line of business; (xi) other than any Indebtedness solely between Acquired Companies, create, incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness; (xii) waive, release, settle or compromise any pending or threatened Claim or compromise or settle any liability, in each case in an amount in excess of $1,250,000.00 individually or $2,500,000.00 in the aggregate or that is otherwise material to the business of the Acquired Companies; (xiii) fail to maintain, cancel or materially change coverage under any Insurance Policy; (xiv) settle or compromise any material liability for Taxes, amend any Tax Return, adopt or change any method of accounting for Tax purposes, make any material Tax election, or enter into any closing agreement with respect to any material Tax, in each case, that would materially increase the Taxes of any Acquired Company with respect to taxable periods beginning on or after the Closing Date, except, in each case, in the ordinary course of business or as required by Law; (xv) except (i) to the extent required by applicable Law, (ii) to the extent required by any Benefit Plan or CBA, in each case, which is set forth on the Company Disclosure Schedule and as in effect on the date of this Agreement, grant any increase in the compensation or severance pay to any officer of any Acquired Company or adopt, enter into or amend any Benefit Plan; (xvi) except to the extent required by applicable Law, enter into any collective bargaining agreement or amend, modify or extend the term of any CBA, except in accordance with the Memoranda of Understanding entered into with the Utility Workers Union of America and the International Brotherhood of Electrical Workers on August 8, 2014; (xvii) declare, set aside or pay any dividends or distributions in respect of its capital stock (other than cash distributions); (xviii) enter into or modify in any material respect, terminate, cancel, renew or assign any material Permit other than in the ordinary course of business or other than any such Permit that will expire or be satisfied in full prior to the Closing; or (jxix) enter into modify in any Contract material respect the Commodity Risk Policy, the Acquired Companies Trading Guidelines or any similar policy, other than modifications that are more restrictive to the Acquired Companies; (xx) purchase or sell any Regional Greenhouse Gas Initiative CO2 allowances; or (xxi) agree or commit to do any of the foregoing. (b) Notwithstanding Section 6.02(a) or any other provision herein, the Acquired Companies (i) may take commercially reasonable actions (whether or not permitted by Section 6.02(a)) with respect to emergency situations and/or as required to comply with applicable Law; provided, that any such action (other than as required to comply with applicable Law) shall be limited to necessary repairs due to breakdown or casualty and in the reasonable judgment of the Sellers for no longer than is required by any such emergency and with prompt notice to Parent with respect to such actions taken, and in no event later than twenty-four (24) hours after the taking of such actions and shall not include the incurrence of additional material Indebtedness (other than such Indebtedness that will be repaid, discharged or released on or prior to the Closing) and (ii) may operate, maintain, make capital expenditures and staff the Facility consistent with a facility that is expected to be retired in June 2017. (c) Prior to Closing, other than the obligations, Contracts and liabilities listed in Section 6.02(c)(i) of the Company Disclosure Schedule, the Sellers shall cause all obligations, Contracts or other liabilities between the Combined Acquired Companies, on the one hand, and any Seller or any of their Affiliates (other than the Combined Acquired Companies), on the other hand, to be terminated without any cost or other liability or obligation to the Acquired Companies, including those Contracts set forth in Section 6.02(c)(ii) of the Company Disclosure Schedule. (d) Nothing contained in this Section 6.02 is intended to give Parent the right to control or direct the operations of the Company or the Acquired Companies prior to the Effective Time. Prior to the Effective Time, the Sellers, the Company and the other Acquired Companies shall exercise complete control and supervision over the Company’s and the other Acquired Companies’ operations. (e) The Company shall use commercially reasonable efforts to cause the usable coal inventory at the Facility to not be less than the amount reasonably required to operate the Facility for a twenty-four (24) day period. (f) Notwithstanding Section 6.02(a), during the Interim Period, the Acquired Companies shall be permitted to enter into any Commercial Xxxxxx or any other hedging activities, including hedging programs contemplating physical delivery and the use of derivative financial instruments such as forward contracts, futures contracts and financial swap contracts (collectively, “Hedging Activities”), in each case in the ordinary course of business consistent with past practice; provided that the Hedging Activities shall not include taking a new position in any (i) options or other non-linear products or (ii) Hedging Activities related to plant generation output or fuel commodity requirements with a term extending beyond December 31, 2015; provided that the Acquired Companies may undertake such prohibited Hedging Activities if approved in writing on behalf of Parent by the individual set forth on Section 6.01(b) of the Parent Disclosure Schedule.

Conduct of Business Pending the Closing. During the period from the date of this Agreement WSMP covenants and continuing until the earlier of the termination of this Agreement in accordance agrees with its terms or Sagebrush that, prior to the Closing, unless Sagebrush shall otherwise consent in writing, except with respect to its food manufacturing business (which WSMP shall continue to manage in its sole and absolute discretion) and except as otherwise contemplated by this Agreement or Section 5.8 of the Company shall, WSMP Disclosure Document: (a) its business and shall cause each the business of its Subsidiaries towill be conducted in the ordinary and usual course, carry it will use reasonable efforts to keep intact its and their business organizations and goodwill, and it will use reasonable efforts to keep available the services of their respective officers and employees and maintain good relationships with suppliers, lenders, creditors, distributors, employees, customers and others having business or financial relationships with them; (b) it will continue properly and promptly (1) to file when due all periodic reports and other documents required to be filed by it with the SEC and all federal, state, local, foreign and other tax returns, reports and declarations required to be filed by it (except where the failure to file any such tax returns, reports and declarations would not be reasonably likely to have a Material Adverse Effect on WSMP) and (2) to pay, or make full and adequate provision for the Business payment of, all taxes and governmental charges due from or payable by it, except for such taxes and charges the failure to make the prompt payment of which is not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect on WSMP; (c) it will not (1) amend or restate its charter other than to change the name of WSMP or to increase the number of authorized directors of WSMP or (2) split, combine or reclassify any of its securities, or declare, set aside or pay any dividend or other distribution on any of its securities, or make or agree or commit to make any exchange for or redemption of any of its securities payable in cash, stock or property; (d) neither it nor any of its Subsidiaries will, in any such case, (1) issue or agree to issue any additional shares of, or options, warrants or other rights of any kind to acquire any shares of, its capital stock of any class, whether by purchase or conversion or exchange of other securities, except that WSMP may issue shares upon the exercise of options, warrants, convertible securities and other rights, agreements and commitments outstanding at the date hereof, or (2) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; (e) neither it nor any of its Subsidiaries will create, incur, assume or guarantee any long-term indebtedness for borrowed money or, except in the ordinary course of business andand consistent with past practice, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any short-term indebtedness for borrowed money; (f) neither it nor any of its Subsidiaries will (1) adopt, enter into or amend any bonus, profit sharing, compensation, stock option, warrant, pension, retirement, deferred compensation, employment, severance, termination, change in control or other employee benefit plan, agreement, trust fund or arrangement for the benefit or welfare of any officer, director, employee or consultant or (2) agree to any increase in the compensation payable or to become payable to, without or any increase in the prior written consent contractual term of Buyer: (a) abandon employment of, any rights under any of the Assumed Contracts; terminateofficer, amenddirector, modify employee or supplement the terms of any Assumed Contract; or fail to honor or performconsultant, the Assumed Contracts; (b) other than sales of Inventory except in the ordinary course of business or the disposition and generally consistent with past practice; (g) neither it nor any of obsolete equipmentits Subsidiaries will sell, lease, licensemortgage, surrender, relinquish, sell, transfer, convey, assign encumber or otherwise dispose of or grant any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or interest in any of the Acquired Assetsits assets or properties, except for sales, encumbrances and other than as would not result in any Liability that would be dispositions or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business grants in the ordinary course of businessbusiness and consistent with past practice and except for Liens for taxes not yet due or Liens that are not material in amount or effect and do not impair the use of the property; (fh) increase the salary neither it nor any of its Subsidiaries will (1) acquire (by merger, consolidation or acquisition of stock or assets) any Identified Employee at corporation, partnership or after the time such person becomes an Identified Employeeother organization or division thereof engaged in any business (including, in particular, restaurant operations) or any equity interest therein; (2) enter into any contract or agreement (other than in the ordinary course of business consistent with past practice; ) that would be material to WSMP; or (g3) authorize or make any capital expenditure or rescind any material Tax election expenditures individually in excess of $10,000 or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify aggregate in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets;excess of $50,000; and (i) transfer or grant neither it nor any rights under, modify any existing rights under, or of its Subsidiaries will enter into any settlement regarding the breach agreement, commitment or infringement ofunderstanding, any material Intellectual Property; or (j) enter into any Contract whether in writing or otherwise, with respect to do any of the foregoingmatters referred to in subsections (c) through (h) above.

Conduct of Business Pending the Closing. (a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the ClosingInterim Period, the Company shall, and Sellers shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve cause the Business intact Companies to operate and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, Facilities in the Inventory Value Ordinary Course in accordance with Good Industry Practices and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1compliance in all material respects with all applicable Laws. Without limiting the generality of the first sentence of foregoing, except as otherwise contemplated by this Section 7.1Agreement or set forth in Schedule 6.02(a) or as consented to by Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed, each Company will not, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of BuyerInterim Period: (ai) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign encumber or otherwise dispose of any Acquired Assets; (c) mortgageportion of, pledge or subject to Liens (interest in, any Owned Real Property, or grant any easement, right-of-way agreement, license, lease, sublease, occupancy agreement, or like instrument burdening any portion of, or interest in, the Owned Real Property other than Permitted Liens); (ii) sell, transfer, convey, encumber or otherwise dispose of any propertyMaterial Non-Real Estate Assets outside the Ordinary Course, business or any of the Acquired Assets, except for Permitted Liens; (iii) other than as would not result trade or account payables incurred in the Ordinary Course, incur, create, assume or otherwise become liable for any Liability Debt other than Debt that would will be discharged at or would increase an Assumed Liability as of or subsequent prior to the Closing; (div) incur fail to maintain its existence or permit merge or consolidate with any other Person or acquire all or substantially all of the assets of any other Person, having a value of more than $100,000 in any one instance or $500,000 in the aggregate; (v) issue or sell any of its equity interests; (vi) liquidate, dissolve, reorganize or otherwise wind up its business or operations; (vii) purchase any securities of any Person, except for short-term investments or cash equivalents made in the Ordinary Course; (viii) amend or modify its Charter Documents in any manner that will have a material adverse effect on such Company or Purchaser; (ix) effect any recapitalization, reclassification or like change in its capitalization; (x) except in the Ordinary Course, acquire any material assets; (xi) engage in any new line of business; (xii) make any change in its accounting or Tax reporting principles, methods or policies, except as required by GAAP or applicable Law; (xiii) cease to be treated as a disregarded entity for federal and Colorado state income Tax purposes; (xiv) make any material change in the levels of inventory maintained at such Facility for the applicable time of year, except for such changes as are consistent with Good Industry Practices; (xv) enter into, modify or terminate any Contract required to be listed in Schedule 4.06(a), except in the Ordinary Course, which action shall be promptly disclosed to Purchaser by Sellers; (xvi) make any loans or advances to any Person, except for expenses incurred in the Ordinary Course; (xvii) enter into any Liability agreement or settlement with any Governmental Authority that relates to any amount of Tax, unless the amount of all Taxes imposed as a result of such agreement or settlement does not exceed $100,000 in the aggregate; (other than Accounts Payable or in connection xviii) enter into any transaction with any Affiliate by which the performance of Assumed Contracts) that Company would be or would increase an Assumed Liability as of or subsequent to bound following the Closing; (exix) fail terminate any material policy of insurance, unless such policy is replaced with a policy of insurance from financially responsible insurers covering substantially the same risks, including substantially the same coverage amounts, and including substantially the same or lower deductibles, in each case to replenish the Inventory and Supplies of the Business in the ordinary course of businessextent available on commercially reasonable terms; (fxx) increase the salary of adopt, create, sponsor or otherwise establish, maintain or contribute to any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practiceBenefit Plan; (gxxi) make hire any individual as an employee or rescind otherwise establish or maintain any material Tax election or take employer/employee relationship with any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Propertyindividual; or (jxxii) enter into any Contract agree or commit to do any of the foregoing. (b) Notwithstanding Section 6.02(a) or any other provision herein, such Company may (i) take commercially reasonable actions with respect to emergency situations or to comply with applicable Law or the PPAs and (ii) at or before the Closing, irrevocably transfer out all cash to Sellers. (c) With respect to any Permits that will expire, lapse or otherwise cease to be effective prior to the Closing Date or within sixty (60) days thereafter and any Permits for which the filing of an application for extension, renewal or replacement is due during the Interim Period (regardless of whether such Permits will expire, lapse or otherwise cease to be effective prior to the Closing Date or within the sixty-day period thereafter), including but not limited to the Permits identified and described on Schedule 6.02(c), Sellers shall, or shall cause such Company to, prepare and file during the Interim Period any and all such applications for the extension, renewal or replacement of such Permits and/or any and all such other filings, and shall take (or cause such Company to take) during the Interim Period any and all such other commercially reasonable actions, as may be necessary to ensure that such Permits will be extended, renewed or replaced prior to the expiration, lapsing or other cessation of the effectiveness of such Permits without any material modifications to the terms of such Permits other than (i) modifications to comply with applicable Law or the PPAs or (ii) modifications with Purchaser’s consent, which shall not be unreasonably withheld or delayed. (d) For purposes of clarity, nothing contained in this Agreement shall prohibit the Companies from complying with the PPAs. Nothing in this Agreement shall be deemed to be an amendment or modification of the PPAs. (e) Sellers shall repay in full or otherwise fully extinguish, eliminate or transfer without recourse to the Companies, all Debt of the Companies at or prior to the Closing.

Conduct of Business Pending the Closing. During (a) Prior to the period from the date of Closing, except (i) as set forth on Schedule 7.2(a), (ii) as required by applicable Law, (iii) as otherwise contemplated by this Agreement and continuing until or (iv) with the earlier prior written consent of the termination of this Agreement in accordance with its terms Parent (which consent shall not be unreasonably withheld, conditioned or the Closingdelayed), the Company shall, and shall cause each of its Subsidiaries to, carry on the Business to conduct its business in the ordinary course Ordinary Course of business andBusiness, to and the extent consistent therewith, Company and its Subsidiaries shall use all commercially reasonable efforts to preserve the Business their business organizations intact and preserve the maintain existing relations and goodwill of and relationships with Governmental EntitiesBody, customers, suppliers, partnersdistributors, creditors, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. associates. (b) Without limiting the generality of the first sentence of this Section 7.1foregoing, during the period from the date of except (w) as set forth on Schedule 7.2(b), (x) as required by applicable Law, (y) as otherwise contemplated by this Agreement through or (z) with the Closing Dateprior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (ai) abandon issue, sell, pledge or dispose of any rights under shares of the Company’s or any of its Subsidiaries’ capital stock or other equity securities, other than pursuant to the Assumed Contracts; terminateexercise of any Options; (ii) issue, amendsell, pledge or dispose of any securities convertible into, or options with respect to, warrants to purchase, or rights to subscribe for, any shares of the Company’s or any of its Subsidiaries’ capital stock or other equity securities; (iii) declare, set aside, make or pay any non-cash dividend or other non-cash distribution; (iv) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock or securities convertible or exchangeable into or exercisable for any shares of its capital stock, or make any other change with respect to its capital structure; (v) amend or otherwise change the certificate of incorporation or by-laws or comparable organizational documents of the Company or any of its Subsidiaries; (vi) other than as required by an existing Company Benefit Plan set forth in Schedule 5.13(a), or as otherwise required by applicable Law, (A) increase the compensation, severance or termination payments to, or benefits of, any employee of the Company or its Subsidiaries, except for (1) for employees who are not officers of the Company, increases in annual compensation in the Ordinary Course of Business that do not exceed 3% individually or 0.5% in the aggregate and (2) the payment of annual bonuses for completed periods based on actual performance in the Ordinary Course of Business, (B) become a party to, establish, adopt, modify or supplement amend, commence participation in or terminate any Company Benefit Plan or any arrangement that would have been a Company Benefit Plan had it been in effect as of the date of this Agreement, (C) grant any new awards, or amend or modify the terms of any Assumed Contract; outstanding awards, under any Company Benefit Plan, (D) take any action to accelerate the vesting or fail lapsing of restrictions or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, (E) forgive any loans or issue any loans (other than routine travel advances issued in the Ordinary Course of Business) to honor any employee of the Company or performits Subsidiaries, (F) hire (other than a replacement hire made in the Assumed ContractsOrdinary Course of Business) any employee or engage any independent contractor (who is a natural person) with annual salary or wage rate or consulting fees and target cash bonus opportunity in excess of $200,000 or (G) terminate the employment of any executive officer of the Company other than for cause; (bvii) subject to any Lien any of the properties or assets (whether tangible or intangible) of the Company or any of its Subsidiaries, except for Permitted Exceptions; (viii) become legally committed to make any capital expenditures in excess of $2 million, except for any capital expenditures pursuant to orders previously placed or projects for which work has already been commenced or committed or is otherwise contemplated in the capital expenditure budget set forth on Schedule 7.2(b)(viii); (ix) enter into any merger or consolidation with any Person, or acquire a substantial portion of the securities or assets of any Person or enter into any joint venture, strategic alliance, exclusive dealing or non-competition agreement; (x) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, enter into any agreements or arrangements imposing material changes or restrictions on the Company or any of its Subsidiaries’ assets, operations or businesses, or otherwise alter the Company’s or a Subsidiary’s corporate structure; (xi) incur any indebtedness for borrowed money, issue any debt securities or cause any letters of credit to be issued, or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, except borrowings in the Ordinary Course of Business under the Credit Agreement in accordance with the terms of such facility existing on the date hereof (and not including any incremental facility or other potential expansion of availability thereunder) in an amount not to exceed $1 million in the aggregate, or incur any hedging obligations, or incur, extend, modify or amend any Capital Leases; (xii) other than sales of Inventory with respect to customers or suppliers in the ordinary course Ordinary Course of business Business, loan or advance any funds to any Person such that the disposition amount of obsolete equipmentprincipal of loan advances owed by such Person shall be in excess of $10,000; (xiii) acquire any material properties or assets or sell, leaseassign, license, surrender, relinquish, sell, transfer, convey, assign convey or lease or otherwise dispose of any Acquired Assetsmaterial properties or assets of the Company or any of its Subsidiaries, in each case, except in the Ordinary Course of Business; (cxiv) mortgagesettle or compromise any litigation or other Proceedings for an amount in excess of $500,000 in the aggregate; (xv) make or revoke any material election relating to Taxes, pledge settle or subject compromise any material Proceeding relating to Liens Taxes, or, except as required by applicable Law or GAAP, surrender any right to receive any material Tax refund or credit, agree to extend any statute of limitations with respect to Taxes, make any material change to any of its methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the preparation of its most recent Tax Returns; (xvi) amend, modify or waive performance under or terminate any Material Contract (other than Permitted Liensthe expiration of such Material Contract in accordance with its terms), any propertyor amend, business waive, modify or consent to the termination of the Company’s or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax LiabilitySubsidiaries’ rights thereunder, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights underOrdinary Course of Business, or enter into any settlement regarding a Contract that, had such Contract been entered into prior to the breach date hereof, would have been a Material Contract; provided, however, that the Company and its Subsidiaries may, in the Ordinary Course of Business, extend or infringement ofrenew, on terms no less favorable in the aggregate to the Company or such Subsidiary or pursuant to the terms that are set forth in such Material Contract, any material Intellectual Property; orMaterial Contract that has expired in accordance with its terms prior to the date hereof or is scheduled to expire in accordance with its terms within twelve (12) months after the date hereof; (jxvii) enter into any Contract to do with any Affiliate of the Company or any of the foregoingits Subsidiaries; (xviii) make any change in any method of accounting or accounting practice or policy, except as required by GAAP; or (xix) authorize, or commit or agree to do, anything prohibited by this Section 7.2.

Conduct of Business Pending the Closing. During Except as contemplated by this Agreement and except for the consummation of the transactions previously disclosed in writing to the Investors on the terms specified therein ("Permitted Transactions"), during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or hereof to the Closing, the Company shallwill, and shall will cause each of its Subsidiaries to, carry on the Business conduct its operations in the ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, use all commercially reasonable efforts with no less diligence and effort than would be applied in the absence of this Agreement, seek to preserve intact its current business organizations, seek to keep available the Business intact and preserve the goodwill service of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the Business, provided end that goodwill and ongoing businesses shall be unimpaired at the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1Closing. Without limiting the generality of the first sentence of foregoing, and except as otherwise expressly provided in this Section 7.1Agreement, during prior to the period from the date of this Agreement through the Closing DateClosing, neither the Company shall not, and shall not permit nor any of its Subsidiaries toshall, without the prior written consent of Buyerthe Investors: (a) abandon any rights under any amend its certificate of the Assumed Contracts; terminate, amend, modify incorporation or supplement the terms of any Assumed Contract; bylaws (or fail to honor or perform, the Assumed Contractsother similar governing instrument); (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipmentauthorize for issuance, lease, license, surrender, relinquishissue, sell, transferdeliver or agree or commit to issue, conveysell or deliver (whether through the issuance or granting of options, assign warrants, commitments, subscriptions, rights to purchase or otherwise dispose otherwise) any stock of any Acquired Assetsclass or other equity interest or any equity equivalents (including, without limitation, any stock options or stock appreciation rights), or any other securities convertible into or exchangeable for any stock, other equity interest or equity equivalent, except for the issuance or sale of Common Stock pursuant to the exercise of currently outstanding warrants and stock options disclosed on Schedule 3.02(a); (ci) mortgagesplit, pledge combine or subject to Liens reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock (other than Permitted Liensdividends or distributions made to the Company); (iii) make any other actual, constructive or deemed distribution in respect of any propertyshares of its capital stock or otherwise make any payments to stockholders in their capacity as such (other than dividends or distributions made to the Company); (iv) redeem, business repurchase or otherwise acquire any of its securities or any securities of any of its Subsidiaries; or (v) amend the Acquired Assets, other than terms of any of its outstanding securities such as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closingits obligations thereunder; (d) incur adopt a plan of complete or permit to be incurred any Liability (other than Accounts Payable partial liquidation or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability dissolution except as of or subsequent to the Closingset forth on Schedule 5.01(d); (e) fail become a party to replenish the Inventory and Supplies any merger (other than a merger among wholly owned Subsidiaries of the Business in the ordinary course of businessCompany and no other Persons), consolidation, combination, recapitalization, reorganization or restructuring; (f) increase (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings in the salary ordinary and usual course of business consistent with past practice under the Existing Credit Facility; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any Identified Employee at other Person, except in the ordinary and usual course of business consistent with past practice and in amounts not material to the Company and its Subsidiaries, taken as a whole, and except for guarantees of obligations of the Company or after wholly-owned Subsidiaries of the time such person becomes Company; (iii) make any loans, advances or capital contributions to, or investments in, any other Person (other than to wholly-owned Subsidiaries of the Company); (iv) pledge or otherwise encumber shares of capital stock of the Company or its Subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any Lien thereupon; (g) except as may be required by Law, enter into, adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund, award or other arrangement for the benefit or welfare of any director, officer or employee in any manner, or (except for normal increases in the ordinary and usual course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company) increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units) except as set forth on Schedule 5.01(g); (h) acquire, sell, lease or dispose of any assets having an Identified Employeeinitial cost or fair market value in excess of $500,000 or any assets which individually or in the aggregate are material to the Company and its Subsidiaries taken as a whole; (i) except as may be required as a result of a change in Law or in GAAP, change any of the accounting principles or practices used by it; (j) revalue in any material respect any of its assets, including, without limitation, writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary and usual course of business consistent with past practice or as required by GAAP; (i) acquire (by merger, consolidation, or acquisition of stock or assets) any Person or division thereof or any equity interest therein; (ii) enter into any Contract, other than in the ordinary and usual course of business consistent with past practice, or amend in any material respect any of the Material Contracts; (iii) authorize any new capital expenditure or expenditures which individually is in excess of $250,000 or which exceed, in the aggregate, $500,000, other than capital expenditures that are currently budgeted in the Company's annual budget, a copy of which has been previously provided to the Investors; or (iv) enter into or amend any Contract providing for the taking of any action that would be prohibited hereunder; (gl) depart from any normal drydock and maintenance practices or discontinue replacement of spares in operating its fleet; (m) defer any scheduled maintenance on any Vessels except as may be contemplated in the Company's annual budget, as modified to the date hereof; (n) make or rescind any material Tax election or take any material Tax position (unless required by law) or file revoke any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practiceselection, or settle or compromise any Tax Liabilityliability, except in each case as would not reasonably be expected or change (or make a request to affect the Buyerany taxing authority to change) any aspect of its method of accounting for Tax purposes; (ho) institutepay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary and usual course of business consistent with past practice of liabilities reflected or reserved against in, the consolidated financial statements of the Company and its Subsidiaries or incurred in the ordinary and usual course of business consistent with past practice, or amend or waive any material right, or the benefits of any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party; (p) settle or agree to settle compromise any litigationpending or threatened suit, action or Proceeding before material claim or any court or Governmental Entity claim relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired AssetsTransactions; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (jq) enter into any Contract or arrangement that limits or otherwise restricts the Company or any of its Subsidiaries (or that could, after the Closing, limit or restrict the Company or any of its Affiliates) from engaging or competing in any line of business or in any geographic area; (r) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to do pay or delay payment of payables or other liabilities; or (s) take, propose to take, or agree in writing or otherwise to take, any of the foregoingactions described in Sections 5.1(a) through 5.1(r) or any action which would make any of the representations or warranties of the Company contained in this Agreement (i) which are qualified as to materiality untrue or incorrect or (ii) which are not so qualified untrue or incorrect in any material respect. In addition, except in circumstances in which the duties of the parties hereto under this Agreement are specifically described herein, the Company and each of the Investors shall use its respective commercially reasonable efforts to cause all conditions contained in, in the case of the Company, Sections 6.02 and 6.03, and in the case of the Investors, Sections 6.01 and 6.03(b), hereof to be satisfied at the earliest practicable date.

Conduct of Business Pending the Closing. During Except as set forth in Section 7.1 of the period from the date of Companies' respective Disclosure Schedules or as otherwise expressly contemplated by this Agreement and continuing until the earlier of the termination of this Agreement or as consented to by Pacific Life in accordance with its terms or the Closingwriting, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During during the period from the date of this Agreement through and including the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth Companies shall, and shall cause their Subsidiaries to, carry on Schedule 7.1their respective businesses in the ordinary course consistent with past practice and in compliance in all material respects with all applicable laws and regulations and, to the extent consistent therewith, shall use reasonable efforts to preserve intact their current business organizations and use reasonable efforts to preserve their relationships with those persons having business dealings with them. Without limiting the generality of the first sentence foregoing, except (i) as set forth in Section 7.1 of the Companies' respective Disclosure Schedules, (ii) with respect to the "securitization" (or other similar financing) of payments due Prison Realty or its Subsidiaries from the HMP Secretary of State for the Home Department of the United Kingdom with respect to Prison Realty's HMP Forest Bank facility located in Salford, England, or (iii) as otherwise expressly contemplated by this Section 7.1Agreement, including without limitation the Merger Agreement, or as consented to by Pacific Life in writing, during the period from the date of this Agreement through the Closing Date, none of the Company shall notCompanies shall, and each shall not permit any of its their Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any other than (w) dividends and distributions by a direct or indirect wholly owned Subsidiary to the Companies or one of their wholly owned Subsidiaries, (x) the Assumed Contracts; terminate1999 Distribution, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts;(y) dividends and distributions paid by Service Company A and (b) other than sales the 1999 Distribution and the issuance of Inventory Prison Realty securities in the ordinary course Rights Offering, issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any of its shares of capital stock or any other voting securities or any securities convertible into, exercisable for or exchangeable with, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities; (c) amend its charter, bylaws or other comparable organizational documents or amend or waive any provisions of the Transaction Documents or undertake any act or fail to act where such act or failure to act would or could frustrate the purpose of the Transaction Documents; (d) acquire any business (whether by merger, consolidation, purchase of assets or otherwise) or acquire any equity interest in any person not an affiliate (whether through a purchase of stock, establishment of a joint venture or otherwise); (e) other than the disposition obligations for capital commitments set forth in Section 7.1 of obsolete equipmentany of the Companies' respective Disclosure Schedules, (A) sell, lease, exchange, license, surrender, relinquish, sell, transfer, convey, assign mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any Acquired Assets; of its real properties or other assets, (cB) mortgageenter into any new joint ventures or similar projects, pledge (C) enter into any new development projects or subject to Liens (D) enter into any new leases or other than Permitted Liens), any property, business material agreements or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of businessunderstandings; (f) increase change its methods of accounting (or underlying estimates or assumptions), except as required by changes (i) in GAAP, (ii) in law or regulation, or (iii) due to events subsequent to September 30, 1999 related or consequential to entering into the salary Merger Agreement or the Transaction Documents or the consummation of the transactions contemplated thereby (including, but not limited to, the effects of any Identified Employee at changes required by the SEC as part of its review of the SEC Reports and the disclosure related to the Combination and the transactions contemplated hereunder); or after change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the time preparation of the federal income tax returns of (g) effect any settlement or compromise of any pending or threatened proceeding in respect of which the Companies are or could have been a party, unless such person becomes settlement (i) includes an Identified Employeeunconditional written release of the Companies, in form and substance reasonable satisfactory to the Companies, from all liability on claims that are the subject matter of such proceeding, (ii) does not include any statement as to any admission of fault, culpability or failure to act by or on behalf of the Companies and (iii) is less than $100,000; (h) other than the obligations for capital commitments set forth in Section 7.1 of any of the Companies' respective Disclosure Schedules, create, renew, amend, terminate or cancel, or take any other action (or fail to take any action) that could reasonably be expected to result in the creation, renewal, amendment, termination or cancellation of any agreement or instrument that is material to the Companies and their respective subsidiaries, taken as a whole; (i) other than the obligations for capital commitments set forth in Section 7.1 of any of the Companies' respective Disclosure Schedules, incur any indebtedness for borrowed money (including, but not limited to, borrowings under the Companies' respective credit facilities other than borrowings contemplated by the Companies' respective business plans previously provided to Pacific Life); (j) other than the obligations for capital commitments set forth in Section 7.1 of any of the Companies' respective Disclosure Schedules, enter into any new capital or take out commitments or increase any existing capital or take out commitments; (k) except pursuant to agreements or arrangements in effect on the date hereof, (A) terminate the employment of any executive officer of the Companies, (B) enter into any new employment agreement with any director, executive officer or other employee without the consent of Pacific Life, (C) grant to any current or former director, executive officer or other key employee of the Companies or any Subsidiary any increase in compensation, bonus or other benefits (other than increases in base salary in the ordinary course of business consistent with past practicepractice or arising due to a promotion or other change in status and consistent with generally applicable compensation practices), (D) grant to any such current or former director, executive officer or other employee any increase in severance or termination pay, (E) amend, adopt or terminate any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or employee, or (F) amend, adopt or terminate any Benefit Plan, except as may be required to retain qualification of any such plan under Section 401(a) of the Code; (gl) make except pursuant to agreements or rescind arrangements in effect on the date hereof or as otherwise contemplated by this Agreement which have been disclosed in Section 7.1 of the Companies' Disclosure Schedules, pay, loan or advance any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practicesamount to, or settle sell, transfer or lease any Tax Liabilityproperties or assets (real, except in each case as would not reasonably be expected to affect the Buyer; (hpersonal or mixed, tangible or intangible) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assetsto, or modify in purchase any manner that is adverse to the Business properties or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights underassets, or enter into any settlement regarding the breach agreement or infringement ofarrangement with, any of its officers or directors or any affiliate or the immediate family members or associates of any of its officers or directors, other than payment of compensation at current salary, incentive compensation and bonuses and other than properly authorized business expenses in the ordinary course of business, in each case consistent with past practice; (m) permit any material Intellectual Propertyinsurance policy naming the Companies or any Subsidiary as a beneficiary or a loss payable payee to be canceled, diminished or terminated, or fail to obtain or maintain the insurance coverage specified on Schedule 7.1(m) attached hereto; (n) enter into or amend in a manner adverse to Pacific Life any new agreement which has a non-competition, geographical restriction or similar covenant; or (jo) enter into any Contract authorize, or commit or agree to do take, any of the foregoingforegoing actions.

Conduct of Business Pending the Closing. During the period from the date of (a) Except as otherwise expressly contemplated by this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms Schedules attached hereto, required by Applicable Law or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing prior written consent of Purchaser (which consent shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Datebe unreasonably withheld, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at delayed or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1conditioned), during the period from the date of this Agreement hereof to and through the Closing Date, Seller shall (subject to receipt of the Company shall not, and shall not permit any of its Subsidiaries to, without Sale Order) use commercially reasonable efforts to preserve in all material respects the Transferred Assets. (y) as required by Applicable Law or (z) with the prior written consent of BuyerPurchaser (which consent shall not be unreasonably withheld, delayed or conditioned), Seller shall not: (ai) abandon subject to paragraph (xv) below, sell, transfer or otherwise dispose of, or create any rights under encumbrances on, any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; Transferred Asset (b) other than sales of Inventory inventory or de minimis assets), except in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired AssetsBusiness; (cii) mortgageenter into any merger or consolidation with any Person; (iii) adopt a plan or agreement of complete or partial liquidation or dissolution; (iv) issue or sell any shares of capital stock, pledge limited liability company membership interests or subject to Liens (other than Permitted Liens)equity ownership interests, any property, business of Seller or any of the Acquired Assetsits controlled Affiliates, or grant options, warrants or other than as would not result in rights to purchase any Liability that would be shares of capital stock, limited liability company membership interests or would increase an Assumed Liability as other equity ownership interests of Seller or subsequent to the Closingany of its controlled Affiliates; (dv) incur pass any resolution on the change of the articles of association or permit to be incurred any Liability (other than Accounts Payable bylaws or in connection with the performance similar corporate documents of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the ClosingSeller; (evi) fail to replenish the Inventory and Supplies make any acquisition (including by merger) of the Business capital stock, or a division or (except in the ordinary course of business) other material portion of the assets, of any other Person; (fvii) increase declare or pay dividend or other cash distribution to an Affiliate; (viii) pay any management fees, consulting fees, monitoring fees, service fees, director’s fees or professional advisor’s fees, except as permitted by the salary of any Identified Employee at Bankruptcy Court or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (gix) make commence, settle or rescind compromise any litigation or arbitration proceedings related to the Business in respect of any claim in excess of $50,000; (x) enter into any material Tax election amendment, variation or waiver, or any termination (including, without limitation, a rejection pursuant to Section 365 of the Bankruptcy Code) of, any executory contract or unexpired lease expected to be assigned to Purchaser at Closing, including, without limitation, any Leased Real Property; (xi) fail to make payments due in the ordinary course (other than amounts due as of August 14, 2009) under any executory contract or unexpired lease expected to be assigned to Purchaser at Closing, including, without limitation, any Leased Real Property; (xii) increase the compensation payable or the benefits provided to any Employee or adopt, modify, or amend any Employee Benefit Plan, other than as required by the terms of any Contracts or Employee Benefit Plans or arrangements in effect as of the date hereof; (xiii) enter into any employment agreement not terminable at will; (xiv) enter into any agreement with any of its Affiliates; (xv) transfer ownership or grant any license or other rights to any Person, of or in respect of any Purchased Intellectual Property; (xvi) transfer any license to use any Intellectual Property Rights, Software or Technology; (xvii) fail to make any filing, pay any fee, or take any material Tax position other action necessary to maintain the ownership, validity and enforceability of any Purchased Intellectual Property; (unless required by lawxviii) or file make any Tax Return or change its fiscal year or financial or Tax in accounting methods, policies principles or practices, or settle any Tax Liability, practices except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Propertyrequired by GAAP; or (jxix) enter into any Contract agree to do any of the foregoinganything prohibited by this Section 7.2.

Conduct of Business Pending the Closing. During the period from (a) From the date of this Agreement and continuing hereof until the earlier Closing Date, each of the termination of this Agreement in accordance with its terms or the Closing, Sellers and the Company shallwill: (i) carry on its business in substantially the same manner as it has heretofore and not introduce any material new method of management, operation or accounting; (ii) maintain its properties and shall cause each facilities, including those held under leases, in as good working order and condition as at present, ordinary wear and tear excepted; (iii) perform all its obligations under all material written and oral agreements relating to or affecting its business, assets or rights, including the timely payment of all amounts due to Governmental Authorities, suppliers and other vendors; (iv) maintain in full force and effect without interruption (or replace with equivalent insurance) all its present insurance policies; (v) use reasonable commercial efforts to (i) maintain and preserve its business organization intact, (ii) retain the services of its Subsidiaries present employees and (iii) maintain its relationships with all Governmental Authorities, including, but not limited to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customersAccreditation Authorities, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees customers and others having business dealings relations with it; (vi) comply with all applicable Governmental Requirements and provide notice of any governmental inquiry, notice or investigation; and (vii) except as required or expressly permitted by this Agreement, maintain leases on their present terms and not incur new or amended Indebtedness or enter into new or amended lease instruments or agreements without the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from prior written consent of Buyer. (b) From the date of this Agreement through hereof and until the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of BuyerBuyer or unless as required or expressly permitted by this Agreement, none of the Sellers or the Company will: (ai) abandon nor Shareholders will, make any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contractschange in its Charter Documents; (bii) nor Shareholders will, issue any of its Capital Stock or issue or otherwise create any options, warrants or rights to acquire any of its Capital Stock; (iii) make any Restricted Payment; (iv) pay to, or on behalf of, the Seller Parties any (y) compensation in excess of the rate of compensation payable to the Seller Parties as set forth on Schedule 4.26(a) or (z) any other payment of any kind whatsoever; (v) make any investments (other than sales short-term certificates of Inventory deposit of a commercial bank or trust company) in the Capital Stock (or options, warrants or rights to acquire the Capital Stock) or Indebtedness of any Person; (vi) enter into any agreement or commitment or incur, or agree to incur any liability or make any capital payment or expenditure of any kind otherwise than in the ordinary course of its business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assetsand consistent with its past practice; (cvii) mortgage, pledge increase or subject commit or promise to Liens (other than Permitted Liens), any property, business increase the cash compensation payable or to become payable to any of the Acquired Assetsits officers, other than as would not result in directors, stockholders, employees or agents, consultants or independent contractors or make any Liability that would be discretionary bonus or would increase an Assumed Liability as of or subsequent management fee payment to the Closingany such Person; (dviii) incur create, assume or permit to be incurred created or imposed any Liability (Liens upon any of its assets or properties, whether now owned or hereafter acquired other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than purchase money security interests for equipment used in the ordinary course of business consistent with prior practice and with respect to which equipment the monthly expenditures do not exceed one thousand dollars ($1,000.00). (ix) (y) adopt, establish, amend or terminate any of its Employee Benefit Plans, or any Other Compensation Plans or Employee Policies and Procedures or (z) take any discretionary action, or omit to take any contractually required action, if that action or omission could either (A) deplete the assets of any of its Employee Benefit Plans or any Other Compensation Plan or (B) increase the liabilities or obligations under any such plan; (x) sell, assign, lease or otherwise transfer or dispose of any of its owned or leased property or equipment otherwise than in the ordinary course of its business and consistent with its past practice; (gxi) negotiate for the acquisition of any business or the start-up of any new business; (xii) Shareholders will, merge, consolidate or effect a share exchange with, or agree to merge, consolidate or effect a share exchange with any other Entity; (xiii) waive any of its material rights or claims, provided that it may negotiate and adjust bills in the course of good faith disputes with customers in a manner consistent with past practice; (xiv) commit a breach of, or amend or terminate any Material Agreement to which it is a party including, but not limited to, the terms of any payable or receivable and any agreement with an investor or supplier; (xv) enter into any other transaction that is not in the ordinary course of its business and consistent with its past practice or that is prohibited hereby; (xvi) nor Shareholders will, make or rescind revoke any material Tax election respecting the Sellers, or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practicesaction which results, or settle could result, in a termination of the status of any Tax Liability, except in each case of the Sellers as would not reasonably be expected to affect a "Subchapter S" corporation within the Buyermeaning of Section 1361 of the Code or the status of any Company Subsidiary as a qualified Subchapter S subsidiary for purposes of Section 1361(b)(5) of the Code; (hxvii) institutenor Seller Parties will, settle except as otherwise expressly consented to, in writing, by Xxxxxxx, from the date of this Agreement until the Closing Date, directly or agree to settle indirectly purchase or sell (including short sales) any litigation, action shares of the capital stock of Xxxxxxx or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify its Affiliates in any manner that is adverse to the Business transactions effected on The Nasdaq Stock Market or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Propertyotherwise; or (jxviii) enter into take any Contract action that would cause the Company to do any of the foregoingcease to be classified as a partnership for federal tax purposes.

Conduct of Business Pending the Closing. During the period from the date of this Agreement and continuing until the earlier of (i) the termination of this Agreement in accordance with its terms and (ii) the Closing (the “Interim Period”), except as may be required by Order of the Bankruptcy Court (provided that Sellers have not directly or indirectly petitioned, sought, requested or moved for such order of the ClosingBankruptcy Court or authorized, supported or directed any other Person to petition, seek, request or move for such Order of the Company shallBankruptcy Court), and Sellers shall cause each of its Subsidiaries to, carry on the Business in the ordinary course Ordinary Course of business and, Business except to the extent consistent therewith, use all commercially reasonable efforts to preserve otherwise agreed in writing by the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed ContractsBuyer. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of Notwithstanding the first sentence of this Section 7.16.1, during the period from the date of this Agreement through the Closing Date, the Company Interim Period Sellers shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminateenter into, modify, amend, modify terminate, waive any material rights or supplement obligations under or otherwise seek to reject any Material Contract or any other Contract that would be material to the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsBusiness; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign assign, or otherwise dispose of any of the Acquired AssetsAssets or permit the Company to purchase any assets outside of the Ordinary Course of Business; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or ) on the Acquired Assets and/or any of the Acquired Assets, other than as would not result in assets of the Companies or any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closingpart thereof; (d) incur institute, settle, compromise or permit agree to be incurred settle any Liability (i) material Proceeding (other than Accounts Payable any contested matter or proceeding in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent related to the ClosingChapter 11 Cases) before any Governmental Entity relating to the Company or (ii) any pending or threatened Claim that could give rise to Liabilities or could impose any binding obligation, whether contingent or realized, on the Company; (e) fail to replenish the Inventory and Supplies take any action outside of the Business in the ordinary course Ordinary Course of businessBusiness; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than license Intellectual Property Rights except for licenses in the ordinary course Ordinary Course of business consistent with past practiceBusiness; (g) make or rescind enter into any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methodsContract providing for capital expenditures with respect to the Business in an amount to be paid after the Closing of more than $25,000, policies or practicesindividually, or settle any Tax Liability$100,000, except in each case as would not reasonably be expected to affect the Buyer;aggregate; or (h) instituteauthorize, settle or commit, agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of the foregoing. Nothing contained in this Agreement is intended to give Buyer or its Affiliates, directly or indirectly, the right to control or direct the business of Sellers prior to the Closing.

Conduct of Business Pending the Closing. During the period from (a) Between the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company Seller shall endeavor use its reasonable best efforts to maintain the Net Receivables Amount, the Inventory Value and cause each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, Companies to (x) operate and shall not permit any of maintain its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than assets in the ordinary course of business consistent with past practice;practices, and (y) use commercially reasonable efforts to preserve, maintain and protect its assets in material compliance with applicable Permits, Orders and Laws and the rules and regulations of any applicable independent system operator or regional transmission organization; provided that, Buyer agrees and acknowledges that Seller’s obligations under this Section 6.7, including the obligation to cause the Companies to take any actions, are expressly subject to and limited by Seller’s rights to take such action or to cause the Companies to take such action under the Merger Agreement. (gb) Notwithstanding Section 6.7(a) or any other provision herein, Seller may cause (or consent to actions with respect to) the Companies to take commercially reasonable actions with respect to emergency situations or to comply with applicable Laws, Permits or Orders or the direction of any applicable independent system operator or regional transmission organization; provided, however, that Seller shall provide Buyer with notice of such action as soon as reasonably practicable. (c) Seller shall not consent to Dynegy’s request for approval to take any action, or waive Dynegy’s or its Affiliates’ failure to perform any obligation under the Merger Agreement primarily relating to the Companies, their Subsidiaries, the Business, the Stations, or the Specified Assets without Buyer’s prior written consent, not to be unreasonably withheld, delayed or conditioned. Seller shall promptly notify Buyer of any written request for approval to take any action or grant a waiver for failure take action pursuant to the Merger Agreement. Seller may not make or rescind consent to any amendment to the Merger Agreement that would affect or is reasonably expected to affect (i) in any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methodsrespect, policies or practicesthe Companies, their Subsidiaries, the Business, the Stations, or settle any Tax Liabilitythe Specified Assets; or (ii) the likelihood that the Merger Agreement will be terminated, except in each case as would without Buyer’s prior written consent. Seller shall not reasonably be expected waive any closing condition in the Merger Agreement without Buyer’s prior written approval, not to affect the Buyer;unreasonably withheld, delayed or conditioned. (hd) instituteSeller shall not consent to Dynegy’s request for approval to take an action under the Merger Agreement that would result in Dynegy selling or transferring all or substantially all of Dynegy’s assets to any third parties (including the transactions contemplated hereunder) prior to or as a result of the Closing. (e) Seller will provide Buyer with any amendments, settle modifications, or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating supplements to the Acquired AssetsMerger Agreement and all schedules, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of the foregoingannexes and exhibits thereto.

Conduct of Business Pending the Closing. During the period from the date of this Agreement Date and continuing until the earlier of (i) the termination of this Agreement in accordance with its terms or and (ii) the ClosingClosing (the “Interim Period”), the Company shall, and Sellers shall cause each of its Subsidiaries to, (i) carry on the Business in the ordinary course Ordinary Course of business andBusiness, except to the extent consistent therewithotherwise agreed in writing by the Buyer, and (ii) use all commercially reasonable efforts to maintain and preserve intact the current Business intact and Acquired Assets and preserve the rights, franchises, goodwill of and relationships with Governmental Entitiesof its employees, customers, suppliers, partnersregulators, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having significant business dealings relationships with the Business, provided that Business and the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1Acquired Assets. Without limiting the generality of the first sentence of this Section 7.1foregoing, during the period from the date of Interim Period, except (w) as expressly permitted by this Agreement through the Closing Date(x) as set forth on Schedule 6.1, the Company shall not(y) as required by applicable Law, and shall not permit any of its Subsidiaries to, without or (z) with the prior written consent of the Buyer, Sellers shall not do any of the following: (ai) abandon (A) modify, terminate, cancel or waive any rights under material right under, any of the Assumed Contracts; terminate, amend, modify Material Contracts and Leases or supplement (B) enter into any Contract that would have been a Material Contract and Lease had it been entered into prior to the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsAgreement Date; (bii) other than sales of Inventory except in the ordinary course Ordinary Course of business or the disposition of obsolete equipmentBusiness, sell, lease, license, surrender, relinquish, sellassign, transfer, convey, assign abandon or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens any Lien (other than Permitted Liens), ) any property, business assets or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closingproperties; (diii) incur acquire any business, or permit to be incurred Person, by merger or consolidation, purchase of substantial assets or equity securities, or by any Liability (other than Accounts Payable manner, in a single transaction or in connection with the performance a series of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closingrelated transactions; (eiv) fail to replenish the Inventory maintain, or allow to lapse, or abandon any Registered IP; (v) fail to maintain any customer lists or other books and Supplies records of the Business in the ordinary course Ordinary Course of businessBusiness; (fvi) increase destroy or fail to preserve any customer data except to the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than extent required by applicable Law and in the ordinary course Ordinary Course of business the Business consistent with past practice; (gvii) make any loan, advance or capital contribution to, or investment in, any other Person; (viii) except in the Ordinary Course of Business, (A) increase the salary, bonus, compensation or benefits of any kind to any employee, (B) accelerate or commit to accelerate the funding, payment, or vesting of any compensation or benefits to any current or former employee, (C) establish, adopt, amend or terminate any Seller Benefit Plans, or (D) grant any bonus, severance, benefit or other direct or indirect compensation, or grant any equity or equity-based awards, in each case, to any current or former director, employee, independent contractor or consultant; (ix) (A) hire or engage any new employee, or (B) terminate the services of any key employee or officer; (x) implement any employee layoffs or reduction in force that includes any Offered Employee, (xi) settle, release, abandon, discharge or otherwise compromise any Proceeding; (xii) effectuate any recapitalization, reclassification, stock split or like change in the capitalization of any Seller, or adopt a plan of complete or partial liquidation or dissolution; (xiii) (A) issue, sell, purchase, redeem, retire or grant registration rights with respect to any of its equity interests or any other securities, including any securities convertible into, or options, warrants or rights to purchase or subscribe for, its equity interests or other securities or (B) enter into any Contract with respect to the issuance, sale, purchase or redemption of any of its equity interests or other securities; (xiv) make or rescind change any material Tax election election, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or take assessment, surrender any material right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax position claim or assessment, incur any liability for Taxes outside the ordinary course of business, fail to pay any Tax that becomes due and payable (unless required by law) including any estimated Tax payments), prepare or file any Tax Return in a manner inconsistent with past practice, or adopt or change its fiscal year or financial or any Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyermethod; (hxv) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, change or modify in any manner that is adverse to the Business material accounting practice, policy or the Acquired Assetsprocedure, rescind except as required by GAAP or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assetsapplicable Law; (ixvi) transfer incur, assume, or grant otherwise become liable for any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights underto acquire any debt securities of Sellers, modify guarantee any existing rights undersuch indebtedness or any debt securities of another Person, or enter into any settlement regarding “keep well” or other agreement to maintain any financial statement condition of another Person, except (1) intercompany indebtedness solely between or among any Sellers, or (2) letters of credit, bank guarantees, security or performance bonds or similar credit support instruments, overdraft facilities, or cash management programs, in each case issued, made, or entered into in the breach Ordinary Course of Business; (xvii) make any broad-based communication to customers of the Business (provided, that, such consent shall not be unreasonably withheld, conditioned or infringement ofdelayed in the event that such communication is required by SEC rule or regulation, any material Intellectual Propertythe Bankruptcy Code or the Federal Rules of Bankruptcy Procedure); or (jxviii) enter into any Contract agree or commit to do take any of the actions described in the foregoing clauses (i) through (xvii). Notwithstanding the foregoing, nothing contained in this Agreement is intended to give Buyer or its Affiliates, directly or indirectly, the right to control or direct the business of Sellers prior to the Closing.

Conduct of Business Pending the Closing. (a) During the period from the date of Interim Period and except as prohibited pursuant to this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the ClosingSection 6.2, the Company shall, and Sellers shall cause the Company and each of its Subsidiaries toto use commercially reasonable efforts to conduct their businesses in, carry on the Business in and not take any action not in, the ordinary course of business consistent with past practices and good water and wastewater utility practices (giving consideration to the location, size and technology of each water and wastewater system), and, subject to the extent consistent therewithrequirements of this Agreement, to use all commercially reasonable efforts to preserve, maintain and protect in all material respects their assets and properties, maintain its corporate organization (including good standing in applicable jurisdictions) and to keep available the services of their key officers and employees, to preserve the Business intact and preserve the goodwill of and their relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers Entities and employees counterparties to Material Contracts and others having business dealings to comply in all material respects with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1applicable Laws. Without limiting the generality of the first sentence of this Section 7.1foregoing, during the period from the date of Interim Period, except as otherwise expressly contemplated by this Agreement through or set forth on Section 6.2(a) of the Closing DateDisclosure Schedule or as consented to by the Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, the Sellers shall cause the Company shall not, and shall not permit any each of its Subsidiaries not to, without the prior written consent of Buyer: (ai) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipmenttransfer, lease, license, surrender, relinquishguarantee, sell, transfermortgage, conveypledge, assign encumber or otherwise dispose of any Acquired Assets; (c) mortgage, pledge of its material assets or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assetsproperties, other than as would not result (A) sales or dispositions of obsolete or surplus assets, (B) sales and dispositions in any Liability that would be connection with the normal repair and/or replacement of assets or would increase an Assumed Liability as properties or involuntary sales in lieu of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable condemnation or in connection with eminent domain or similar Legal Proceedings, (C) sales or dispositions required by and in accordance with any Material Contract or Real Property Lease, (D) the performance grant of Assumed Contracts) that would be or would increase an Assumed Liability as easements, rights of or subsequent to the Closing; (e) fail to replenish the Inventory way and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than non-monetary Liens on real property in the ordinary course of business consistent with past practice and not having or reasonably expected to, individually or in the aggregate, materially detract from the value of the relevant property or materially interfere with the Company’s or relevant Subsidiary’s conduct of its business in the ordinary course consistent with past practice, (E) consummation of the Xxxxxxxxx Farms Transaction, the Bayside Transaction or the Xxxxx Creek Transaction, in each case, in accordance with the terms of the relevant transaction agreement made available to Buyer prior to the date hereof and (F) sales or dispositions contemplated by Section 6.2(a) of the Disclosure Schedule; (gii) make directly or rescind any material Tax election indirectly acquire, whether by merger or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practicesconsolidating with, or settle acquiring all or substantially all of the assets of, any Tax Liability, except in each case as would not reasonably be expected to affect the Buyerother Person; (hiii) institutegrant, settle issue, sell, pledge, encumber or agree to settle otherwise dispose of, or split or combine any litigationof the Equity Securities of the Company or any of its Subsidiaries, action or Proceeding before other than any court or Governmental Entity relating award of additional Value Creation Shares provided that the aggregate number of outstanding Value Creation Shares shall not exceed the 10,000,000 Value Creation Shares to the Acquired Assets, or modify in any manner that is adverse to extent authorized under the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired AssetsValue Creation Shares Plan; (iiv) transfer declare, set aside or grant pay any rights under, modify any existing rights underdividends on, or enter into make any settlement regarding the breach other distributions (whether in cash, stock or infringement property) in respect of, any material Intellectual Property; or (j) enter into any Contract to do of the Equity Securities of the Company or any of its Subsidiaries (other than the foregoing.distribution of (u) the Cabarrus Xxxxx Retained Amount; (v) the Xxxxxxxxx Farms Amount concurrently with or after the consummation of the Xxxxxxxxx Farms Transaction;

Conduct of Business Pending the Closing. During the period Except as contemplated or permitted by this Agreement, from the date of this Agreement and continuing hereof until the earlier of the Closing and the termination of this Agreement in accordance with its terms or the ClosingAgreement, the Company LAC shall, and shall cause each of its the LAC Subsidiaries to, carry on the Business conduct its business in the ordinary course of business andOrdinary Course in material compliance with Applicable Laws, to the extent consistent therewith, use all including using commercially reasonable efforts to maintain and preserve intact the Business intact current organization and business of LAC and each of the LAC Subsidiaries in all material respects, preserve and maintain all of its Permits, and preserve the rights, goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed of counterparties of Material Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality foregoing, LAC covenants and agrees with the Investor that LAC will not, and will cause each of the first sentence of this Section 7.1LAC Subsidiaries not to, during the period from the date hereof and ending on the earlier of the Closing and the termination of this Agreement through the Closing DateAgreement, the Company shall not, and shall not permit any of its Subsidiaries to, without except with the prior written consent of Buyerthe Investor, or as set forth in Section 6.2 of the Disclosure Schedule: (a) abandon any rights under authorize, issue, sell, transfer, pledge, grant, dispose of, encumber or deliver any of the Assumed Contracts; terminate, amend, modify Equity Securities of Holdco or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsHoldco Subsidiaries; (b) other than sales permit Holdco or any of Inventory in the ordinary course of business Holdco Subsidiaries to cease being wholly-owned, directly or the disposition of obsolete equipmentindirectly, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assetsby LAC; (c) mortgage, pledge adopt any amendments to organizational or subject to Liens (other than Permitted Liens), any property, business governing documents of LAC or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the ClosingLAC Subsidiaries; (d) incur perform any act or permit to enter into any transaction or negotiation which might materially adversely interfere or be incurred any Liability (other than Accounts Payable or in connection materially inconsistent with the performance consummation of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closingtransactions contemplated by this Agreement and the Related Agreements; (e) fail to replenish the Inventory and Supplies other than as disclosed in Section 6.2(e) of the Business Disclosure Schedule, take any action that, if taken after the Closing, would require Specified Approval (as defined in the ordinary course Joint Venture Agreement) or Supermajority Approval (as defined in the Joint Venture Agreement), would require the consent of business;the Investor pursuant to Section 4.5(c)(i) and (vi) of the Joint Venture Agreement or would require the approval of the Non-Conflicted Members (as defined in the Joint Venture Agreement) as a Related Party Matter (as defined in the Joint Venture Agreement), including, for the avoidance of doubt, making any material amendment to the DOE Loan (other than the DOE Loan Amendment); provided that LAC and the LAC Subsidiaries may provide intercompany funding among LAC and the LAC Subsidiaries through the issuance of equity among LAC and the LAC Subsidiaries, notwithstanding the fact that providing such intercompany funding may constitute a matter requiring Specified Approval or Supermajority Approval; or (f) increase the salary of any Identified Employee at agree or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected commit to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights underdo, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do take, or resolve, authorize or approve any action to do, any of the foregoingforegoing actions, provided, however, that nothing in this Agreement shall limit or restrict LAC from undertaking the Restructuring or from undertaking a debt or equity financing of up to $200 million that: (i) does not prejudice the ability of LAC, the Investor, or their respective Affiliates to complete the transactions set forth in this Agreement and the Related Agreements; (ii) has a use of proceeds that supports LAC’s contemplated financial commitments to develop the Xxxxxxx Pass Project; and (iii) does not involve any (x) Sanctioned Person, (y) FEOC or (z) GM Competitor (in each case as defined in the Phase 1 Offtake Agreement).

Conduct of Business Pending the Closing. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms and the Closing (the “Interim Period”), except as may be required by Order of the Bankruptcy Court (provided that Sellers have not directly or indirectly petitioned, sought, requested or moved for such order of the ClosingBankruptcy Court or authorized, supported or directed any other Person to petition, seek, request or move for such Order of the Company shallBankruptcy Court), and Sellers shall cause each of its Subsidiaries to, carry on the Business in the ordinary course Ordinary Course of business and, Business except to the extent consistent therewith, use all commercially reasonable efforts to preserve otherwise agreed in writing by the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed ContractsBuyer. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of Notwithstanding the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company Interim Period Sellers shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminateenter into, modify, amend, modify terminate, waive any material rights or supplement obligations under or otherwise seek to reject any Material Contract or any other Contract that would be material to the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsBusiness; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign assign, or otherwise dispose of any of the Acquired AssetsAssets or permit the Company to purchase any assets outside of the Ordinary Course of Business; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or ) on the Acquired Assets and/or any of the Acquired Assets, other than as would not result in assets of the Companies or any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closingpart thereof; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle settle, compromise or agree to settle any litigation, action or (i) material Proceeding (other than the Chapter 11 Cases) before any court or Governmental Entity relating to the Acquired AssetsCompany or (ii) any pending or threatened Claim that could give rise to Liabilities or could impose any binding obligation, whether contingent or realized, on the Company, or modify in any manner that is adverse to the Business or the Acquired AssetsCompany, rescind rescind, reject or terminate a material Permit, allowance, or credit Transferable Permit (or application therefor) relating to the Company; (e) with respect to Company, (i) make, change or revoke any material Tax election, (ii) change any annual Tax accounting period, (iii) enter into any agreement with respect to material Taxes or apply for any Tax ruling, (iv) file any amended Tax Return, (v) settle or compromise any Tax Liability or Claim for a Tax refund, (vi) surrender any right to Claim a refund for Taxes, (vii) incur any material Tax Liability outside of the Ordinary Course of Business, (viii) consent to an extension of the statute of limitations applicable to any Tax Claim or assessment (other than pursuant to extensions of time to file Tax Returns obtained in the Ordinary Course of Business) or (ix) change (or request any Governmental Entity to change) any material aspect of its method of accounting for Tax purposes, in each case, except as required by applicable Law; (f) accelerate receipt of any accounts receivable, delay payment of any accounts payable, or take any other action outside of the Ordinary Course of Business; (g) license Intellectual Property Rights except for licenses in the Ordinary Course of Business; (h) enter into any Contract providing for capital expenditures with respect to the Business in an amount to be paid after the Closing of more than $25,000, individually, or $100,000, in the Acquired Assetsaggregate; (i) transfer cancel or grant compromise any claims or waive or release any rights under, modify of the Company outside of the Ordinary Course of Business; (j) incur any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual PropertyIndebtedness; or (jk) authorize, commit, agree to or enter into any Contract to do any of the foregoing. Nothing contained in this Agreement is intended to give Buyer or its Affiliates, directly or indirectly, the right to control or direct the business of Sellers prior to the Closing. Notwithstanding the foregoing, Buyer shall not unreasonably withhold consent to allow Sellers to take appropriate actions to effectuate the transfer of appropriate motor carrier authority to Buyer as of Closing.

Conduct of Business Pending the Closing. During the period from (a) From the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or through the Closing, Seller, to the Company shallextent it exercises decision making power through the Existing Shared Facilities Agreement, and the Existing O&M Agreement or otherwise, shall cause each of its Subsidiaries to, carry on the Business Facility to be operated in the ordinary course of business andbusiness, to the extent consistent therewithin compliance in all material respects with applicable Laws and material Contracts, and use all commercially reasonable efforts to preserve preserve, maintain and protect the Business intact Acquired Assets and preserve the goodwill of Facility in the present condition, ordinary wear and tear excepted, maintain available supplies and inventories in quantities consistent with past practice, maintain the Permits, maintain all relationships with Governmental Entities, customersPJM, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees Governmental Entities and others having business dealings relationships with Seller and its Affiliates related to the BusinessFacility and maintain in full force and effect all insurance policies primarily relating to the Facility or the Acquired Assets in effect on the date hereof. Without limiting the foregoing, provided that except as expressly required by this Agreement, as set forth in Section 5.02 of the foregoing Seller Disclosure Schedule or as consented to in writing by Buyer, which consent shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period be unreasonably withheld, conditioned or delayed, from the date of this Agreement through the Closing DateClosing, Seller shall not (to the extent primarily relating to the Facility, the Company shall endeavor to maintain Acquired Assets or the Net Receivables Amount, Assumed Liabilities) do the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyerfollowing: (ai) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign convey or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (Assets other than Permitted Liens), any property, business dispositions of obsolete tangible personal property or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (fii) increase the salary acquire material assets of any Identified Employee at other Person or after merge or consolidate with any Person or business division, in each case that would result in the time acquisition of Acquired Assets or give rise to an Assumed Liability outside the ordinary course of business; (iii) fully or partially liquidate, dissolve or otherwise wind up its business or operations; (iv) make a voluntary assignment for the benefit of its creditors or file a voluntary petition of bankruptcy or insolvency or otherwise institute insolvency proceedings of any type; (v) amend or modify its Organizational Documents in any manner that would have a material adverse effect on Seller’s ability to consummate the transactions contemplated hereby; (vi) allow the Facility to engage in any material new line of business, or make any material change in the conduct of the business of the Facility; (vii) pay or make any non-cash dividend or other non-cash distribution of property comprising all or any portion of the Acquired Assets, the Facility or the Assumed Liabilities; (viii) (A) create, incur or assume any Indebtedness, except where such person becomes an Identified EmployeeIndebtedness is incurred under existing credit facilities, other than (B) guarantee any Indebtedness of another Person or (C) incur, create or assume, or permit the incurrence, creation or assumption of, any Lien on the Acquired Assets, except for Permitted Liens, except, in each case, in the ordinary course of business consistent with past practiceor as would not constitute an Assumed Liability; (gix) make waive, release, compromise, settle or rescind consent to any material Tax election litigation or take claim where such settlement or consent would result in any material Tax position liability (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case other than as would not reasonably be expected constitute an Assumed Liability) to affect Buyer or the BuyerFacility or would have a material adverse effect on Seller’s ability to perform its obligations hereunder; (hx) instituteenter into, settle or agree to settle terminate, cancel, materially amend, grant any litigationwaiver of any material term under, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify material consent with respect to any existing rights under, Material Contract (or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract that would be a Material Contract if in existence on the date hereof), provided that Seller may take any such action with respect to (A) any Contracts that do any not currently exist, but would (if in existence on the date hereof) be a Material Contract solely due to one or more of clauses (i), (v), (vii), (vii) or (ix) of Section 3.08(a) in the foregoing.ordinary course of business or if such action would not result in a Post-Closing Liability to Buyer, and (B) transactions under the PJM Tariff for the sale of ancillary services (as defined in the PJM Tariff) or day-ahead or intra-day sales of electrical

Conduct of Business Pending the Closing. During the period from From the date of this Agreement and continuing until the earlier Closing Date, except as required or contemplated by this Agreement, for actions taken by the Company of the termination of this Agreement type set forth in accordance with its terms Exhibit 4.5 or the Closingotherwise consented to by Buyer in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or required by applicable Law, the Company shall, and Member shall cause each of its Subsidiaries to, carry on the following to occur: (a) the Company shall operate the Business in the ordinary course, on a basis consistent with past practice, in all material respects; (b) the Company shall not (i) grant any increase in the salaries or wages payable or benefits provided to any Current Employees, except for increases in the ordinary course of business andconsistent with past practice, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill as required under contractual arrangements (including individual employment agreements) in effect as of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: as required by applicable Law or (aii) abandon any rights under any of the Assumed Contracts; terminateadapt, amend, modify or supplement terminate any bonus, profit sharing, incentive, benefit or similar plan other than the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsTerminated Incentive Plans; (bc) the Company shall not extend any offers of employment, or hire, any potential employee to provide services to the Company who would receive annual wages or base salary at a rate of $50,000 or more or extend any consulting Contract that cannot be terminated by the Company on notice of not longer than 30 days without liability, penalty or premium; (d) the Company shall not issue or authorize the issuance of, or agree to issue, any of its limited liability company interests or other than sales equity securities; (e) the Company shall not amend its Articles of Inventory in Organization; (f) the ordinary course of business or the disposition of obsolete equipmentCompany shall not sell, lease, license, surrenderassign, relinquish, sell, transfer, convey, assign encumber or otherwise transfer or dispose of any Acquired Assets; (c) mortgageof its material properties or assets, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than except in the ordinary course of business consistent with past practice; (g) make or rescind the Company shall not waive any material Tax election right of the Company, including any write-off or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practicescompromise of accounts receivable, or settle delay or postpone the payment of any Tax Liabilityaccounts payable, except in each case as would not reasonably be expected to affect the Buyerordinary course of business consistent with past practice; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind Company shall not amend or terminate a material Permit, allowance, or credit any Material Contract (or application therefor) relating to Contract that, if in existence on the Business or date of this Agreement, would constitute a Material Contract), except in the Acquired Assetsordinary course of business consistent with past practice; (i) transfer the Company shall not make any capital expenditure, except for (i) expenditures for routine or grant any rights under, modify any existing rights under, or enter into any settlement regarding emergency maintenance and repair and (ii) other expenditures in an amount that does not exceed $25,000 in the breach or infringement of, any material Intellectual Property; oraggregate; (j) enter into the Company shall not acquire the equity securities, or substantially all of the assets, of any Contract entity (whether directly or indirectly and whether by merger, acquisition of equity securities or assets, reorganization, recapitalization or otherwise); (k) the Company shall not purchase any real property; (l) the Company shall not make any material change in the accounting methods used by it, except as required by GAAP or applicable Law; (m) the Company shall not create, incur, assume or guarantee any indebtedness or capital lease obligation involving more than $25,000 in the aggregate; and (n) the Company shall not agree or make a binding commitment to do any of the foregoingforegoing or take any intentional action or inaction that would intentionally cause any representation and warranty made hereunder not to be true and correct at Closing.

Conduct of Business Pending the Closing. During SECTION 5.1 Conduct of Business by the Company Pending the Closing. The Company covenants and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement Closing, unless ZEFER shall otherwise agree in accordance with its terms or the Closingwriting, which agreement shall not be unreasonably withheld, the Company shallshall conduct its business only in, and the Company shall cause each of its Subsidiaries tonot take any action except in, carry on the Business in the ordinary course of business and, to and in a manner consistent with past practice other than actions expressly provided for in this Agreement; and the extent consistent therewith, Company shall use all commercially reasonable commercial efforts to preserve intact the Business intact business organization of the Company, to keep available the services of the present officers, employees and consultants of the Company and to preserve the goodwill present relationships of and relationships the Company with Governmental Entities, customers, supplierssuppliers and other persons with which the Company has business relations. By way of amplification and not limitation, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, except as expressly provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of for in this Agreement through the Closing DateAgreement, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1not, during the period from the date of this Agreement through and continuing until the Closing DateClosing, the Company shall notdirectly or indirectly do, and shall not permit or propose to do, any of its Subsidiaries to, the following without the prior written consent of BuyerZEFER: (a1) abandon amend the Articles of Organization or Operating Agreement of the Company; (2) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any membership share interests of the Company of any class, or any options, warrants, convertible securities or other rights under of any kind to acquire any shares of capital stock, or any other ownership interest (including, without limitation, any phantom interest) in the Company; (3) except in the ordinary course of business, sell, pledge, dispose of or encumber any assets (tangible or intangible) of the Company except for (i) dispositions of obsolete or worthless assets and (ii) sales of assets not in excess of $10,000 in the aggregate; (4) (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its membership share interests, (ii) split, combine or reclassify any of its membership share interests or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for its membership share interests or (iii) amend the terms or change the period of exercisability of, purchase, repurchase, redeem or otherwise acquire, any of its securities including without limitation, Units or any option, warrant or right, directly or indirectly, to acquire Units, or propose to do any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contractsforegoing; (bi) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other than sales of Inventory business organization or division thereof; (ii) except in the ordinary course of business and only under the Company's revolving line of credit, incur any indebtedness for borrowed money or the disposition of obsolete equipmentissue any debt securities or assume, lease, license, surrender, relinquish, sell, transfer, convey, assign guarantee or endorse or otherwise dispose as an accommodation become responsible for, the obligations of any Acquired Assets; (c) mortgageperson or, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than except in the ordinary course of business consistent with past practice, make any loans or advances; (iii) enter into or amend any material contract or agreement; (iv) authorize any capital expenditures or purchases of fixed assets which are, in the aggregate, in excess of $25,000; or (v) enter into or amend any contract, agreement, commitment or arrangement to effect any of the matters prohibited by this Section 5.1(e); (g6) make increase the compensation payable or rescind any material Tax election to become payable to its officers, increase compensation payable or take any material Tax position (unless required by law) or file any Tax Return or change to become payable to its fiscal year or financial or Tax accounting methodsemployees other in the ordinary course of business, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights underseverance or termination pay to, or enter into any settlement regarding employment or severance agreement with any director, officer or other employee of the breach Company, or infringement ofestablish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any current or former directors, officers or employees, except, in each case, as may be required by law; (7) take any action to change accounting policies or procedures (including, without limitation, procedures with respect to revenue recognition, payments of accounts payable and collection of accounts receivable); (8) make any material Intellectual Propertytax election inconsistent with past practice or settle or compromise any material federal, state, local or foreign tax liability or agree to an extension of a statute of limitations; (9) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities reflected or reserved against in the Financial Statements or incurred in the ordinary course of business and consistent with past practice; or (j10) enter into any Contract take, or agree in writing or otherwise to do take, any of the foregoingactions described in Sections 5.1 (a) through (i) above, or any action which would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or prevent the Company from performing or cause the Company not to perform its covenants hereunder.

Conduct of Business Pending the Closing. During the period from the date of this Agreement Date and continuing until the earlier of (i) the termination of this Agreement in accordance with its terms or and (ii) the ClosingClosing (the “Interim Period”), the Company shall, and Sellers shall cause each of its Subsidiaries to, (i) carry on the Business in the ordinary course Ordinary Course of business andBusiness, except to the extent consistent therewithotherwise agreed in writing by the Buyer, and (ii) use all commercially reasonable efforts to maintain and preserve intact the current Business intact and Acquired Assets and preserve the rights, franchises, goodwill of and relationships with Governmental Entitiesof its employees, customers, suppliers, partnersregulators, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having significant business dealings relationships with the Business, provided that Business and the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1Acquired Assets. Without limiting the generality of the first sentence of this Section 7.1foregoing, during the period from the date of Interim Period, except (w) as expressly permitted by this Agreement through the Closing Date(x) as set forth on Schedule 6.1, the Company shall not(y) as required by applicable Law, and shall not permit any of its Subsidiaries to, without or (z) with the prior written consent of the Buyer, Sellers shall not do any of the following: (ai) abandon (A) modify, terminate, cancel or waive any rights under material right under, any of the Assumed Contracts; terminate, amend, modify Material Contracts and Leases or supplement (B) enter into any Contract that would have been a Material Contract and Lease had it been entered into prior to the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsAgreement Date; (bii) other than sales of Inventory except in the ordinary course Ordinary Course of business or the disposition of obsolete equipmentBusiness, sell, lease, license, surrender, relinquish, sellassign, transfer, convey, assign abandon or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens any Lien (other than Permitted Liens), ) any property, business assets or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closingproperties; (diii) incur acquire any business, or permit to be incurred Person, by merger or consolidation, purchase of substantial assets or equity securities, or by any Liability (other than Accounts Payable manner, in a single transaction or in connection with the performance a series of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closingrelated transactions; (eiv) fail to replenish the Inventory maintain, or allow to lapse, or abandon any Registered IP; (v) fail to maintain any customer lists or other books and Supplies records of the Business in the ordinary course Ordinary Course of businessBusiness; (fvi) increase destroy or fail to preserve any customer data except to the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than extent required by applicable Law and in the ordinary course Ordinary Course of business the Business consistent with past practice; (gvii) make any loan, advance or capital contribution to, or investment in, any other Person; (viii) except in the Ordinary Course of Business, (A) increase the salary, bonus, compensation or benefits of any kind to any employee, (B) accelerate or commit to accelerate the funding, payment, or vesting of any compensation or benefits to any current or former employee, (C) establish, adopt, amend or terminate any Seller Benefit Plans, or (D) grant any bonus, severance, benefit or other direct or indirect compensation, or grant any equity or equity-based awards, in each case, to any current or former director, employee, independent contractor or consultant; (ix) (A) hire or engage any new employee, or (B) terminate the services of any key employee or officer; (x) implement any employee layoffs or reduction in force that includes any Offered Employee, (xi) settle, release, abandon, discharge or otherwise compromise any Proceeding; (xii) effectuate any recapitalization, reclassification, stock split or like change in the capitalization of any Seller, or adopt a plan of complete or partial liquidation or dissolution; (xiii) (A) issue, sell, purchase, redeem, retire or grant registration rights with respect to any of its equity interests or any other securities, including any securities convertible into, or options, warrants or rights to purchase or subscribe for, its equity interests or other securities or (B) enter into any Contract with respect to the issuance, sale, purchase or redemption of any of its equity interests or other securities; (xiv) make or rescind change any material Tax election election, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or take assessment, surrender any material right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax position claim or assessment, incur any liability for Taxes outside the ordinary course of business, fail to pay any Tax that becomes due and payable (unless required by law) including any estimated Tax payments), prepare or file any Tax Return in a manner inconsistent with past practice, or adopt or change its fiscal year or financial or any Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyermethod; (hxv) institutechange or modify any material accounting practice, settle policy or agree to settle any litigationprocedure, action except as required by GAAP or Proceeding before any court or Governmental Entity relating to the Acquired Assetsapplicable Law (xvi) incur, assume, or modify in otherwise become liable for any manner that is adverse indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to the Business acquire any debt securities of Sellers, guarantee any such indebtedness or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights underdebt securities of another Person, or enter into any settlement regarding “keep well” or other agreement to maintain any financial statement condition of another Person, except (1) intercompany indebtedness solely between or among any Sellers, or (2) letters of credit, bank guarantees, security or performance bonds or similar credit support instruments, overdraft facilities, or cash management programs, in each case issued, made, or entered into in the breach Ordinary Course of Business; (xvii) make any broad-based communication to customers of the Business (provided, that, such consent shall not be unreasonably withheld, conditioned or infringement ofdelayed in the event that such communication is required by SEC rule or regulation, any material Intellectual Propertythe Bankruptcy Code or the Federal Rules of Bankruptcy Procedure); or (jxviii) enter into any Contract agree or commit to do take any of the actions described in the foregoing clauses (i) through (xvii). Notwithstanding the foregoing, nothing contained in this Agreement is intended to give Buyer or its Affiliates, directly or indirectly, the right to control or direct the business of Sellers prior to the Closing.

Conduct of Business Pending the Closing. During the period from The Company covenants and agrees that, between the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the ClosingClosing Date, the Company shallBusiness shall be conducted only in, and the Company shall cause each of its Subsidiaries tonot take any action except in, carry on the Business in the ordinary course of business and, to the extent consistent therewith, with past practice. The Company shall use all commercially its reasonable best efforts to preserve intact its business organization, to keep available the Business intact services of its current officers, employees and consultants, and to preserve the goodwill of and its present relationships with Governmental Entities, customers, supplierssuppliers and other persons with which it has significant business relations. By way of amplification and not limitation, partnersexcept as contemplated by this Agreement, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing Company shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from between the date of this Agreement through and the Closing Date, the Company shall endeavor directly or indirectly, do or propose or agree to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess do any of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, following without the prior written consent of Buyer: Nations: (ai) abandon incur any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) additional Indebtedness other than sales amounts borrowed after May 11, 1998 to fund incremental equipment purchases and borrowings under the Compass Bank line of Inventory in Credit not to exceed $2 million (the ordinary course Company will not be restricted from borrowing under the Merrxxx Xxxcx xxxe of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Lienscredit), (ii) create liens on any propertycurrently existing assets, business or (iii) sell any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in assets outside the ordinary course of business; , (fiv) increase the salary of enter into any Identified Employee at contracts, leases or after the time such person becomes an Identified Employee, other than agreements except in the ordinary course of business consistent with past practice; , (gv) amend or terminate any contracts, leases or other agreements except in the ordinary course of business, (vi) declare, make or pay any dividend or distribution with respect to (or redeem any of) the outstanding common stock of the Company; (vii) make (or rescind commit to) any material Tax election capital expenditures in excess of $10,000 except in the ordinary course of business (viii) increase (or take authorize an increase) in compensation or benefits payable to any material Tax position employee, independent contractors or consultants except in the ordinary course of business, (unless required by lawix) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practicesissue, or settle authorize or propose the issuance of, additional outstanding common stock of any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assetsclass, or modify in securities convertible into or exchangeable for any manner that is adverse to outstanding common stock or other securities of the Business Company or the Acquired Assetsany of its subsidiaries, rescind or terminate a material Permit, allowance(x) issue, or credit (authorize or application therefor) relating to propose the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement issuance of, any material Intellectual Property; or other securities in respect of, in lieu of, or in substitution for its now outstanding common stock, (jxi) enter into any Contract to do transfer any of the foregoingoutstanding shares of the Company's capital stock or (xii) purchase additional marketable securities in the Merrxxx Xxxcx xxxount that constitutes an Excluded Asset; provided, however, that the Company may distribute cash or receivables to the Shareholder relating to any of the Purchased Assets owned by A-MOP on the date hereof. The Company agrees to give notice in writing to Nations promptly following the occurrence of any event which has had (or which is likely to have) an adverse effect upon its assets, business, operations, prospects, properties or condition (financial or otherwise).

Conduct of Business Pending the Closing. During At all times from the period from execution of this Agreement until the Closing or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except as may be required by law or as contemplated elsewhere in this Agreement, Seller shall operate the Business in the Ordinary Course of Business in compliance in all material respects with all applicable laws and regulations and preserve substantially intact the Business and the goodwill of the Business. Furthermore, solely with respect to the Business and except as set forth in Section 5.1 of the Seller Disclosure Schedule, Seller agrees not to take any of the following actions (except as expressly permitted by or as contemplated hereby or to the extent Buyer shall consent in writing): (i) take or omit to take any action that would reasonably be expected to have a Business Material Adverse Effect; (ii) acquire in any manner (whether by merger, consolidation, the purchase of an equity interest in or a material portion of the assets of or otherwise) any business or any corporation, partnership, association or other business organization or division thereof of any other Person; (iii) except in the Ordinary Course of Business, amend, extend, enter into, renew or terminate, or agree to any waiver of material rights under, any Non-Government Contract, Government Contract, Government Bid or other Purchased Contract; provided, however, that any amendment of existing purchase, sale or delivery orders shall be prohibited under this Section 5.1 unless Buyer consents thereto in writing; (iv) except as required by applicable law or any Business Benefit Plan in effect as of the date of this Agreement, (i) increase or accelerate the vesting or payment of any wages, salaries, bonuses, incentives, or other compensation of or other benefits payable (or to become payable) to, or enter into any new bonus or incentive agreement or arrangement with, any Business Employees or other service providers, except for base compensation increases for non-officer Business Employees made in the Ordinary Course of Business (and disclosed to Buyer), (ii) pay any severance, change-in-control, retention or termination pay (in cash or otherwise) to any Business Employees or other service providers, (iii) grant or announce any new stock option or other equity awards or enter into any new bonus or incentive agreement with, any Business Employees or other service providers, or (iv) hire any new Business Employees having an annual base salary, commission opportunity and incentive compensation opportunity in excess of One Hundred Thousand Dollars ($100,000) in the aggregate; (v) amend or terminate any Business Benefit Plan or enter into any new plan, policy, agreement or arrangement that would constitute a Business Benefit Plan if it were in effect on the date of this Agreement and continuing until the earlier (except as required by law, pursuant to any agreement then in effect, or as a result of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business a customary renewal in the ordinary course Ordinary Course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at ) or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contractscollective bargaining agreement; (bvi) other than sales of Inventory in the ordinary course Ordinary Course of business Business, incur, assume or the disposition of obsolete equipmentguarantee any Indebtedness, make any loans, advances or capital contributions, to, or investments in, any other Person, or forgive, cancel, compromise, or waive any material rights with respect to, any loans, advances, capital contributions to or investments in any other Person; (vii) sell, lease, licensesublease, surrendersublicense, relinquish, sell, transfer, convey, assign convey or otherwise dispose of any Acquired Assetsmaterial assets, properties or rights (other than Inventory in the Ordinary Course of Business); (cviii) enter into any Contract with any Business Employee or Key Employee; (ix) terminate the employment of any officer, Business Employee or Key Employee, in each case, other than for cause; (i) change or modify its current credit, cash management, collection or payment policies, procedures or practices in any material respect, including such policies, procedures or practices related to acceleration of collections or receivables (whether or not past due), (ii) accelerate any billing of customers or collection of receivables, other than in the Ordinary Course of Business, or (iii) delay, postpone or cancel the payment of accounts payable or any other Liability, or the replacement of inoperable, worn-out or obsolete assets with assets of comparable quality; (xi) (i) make any change in its accounting practices; (ii) make any Tax election; (iii) change its method of Tax accounting; (iv) change an annual accounting period; (v) amend any Tax Return; (vi) surrender any right to claim a refund of Taxes; (vii) fail to timely pay any Tax or timely file any Tax Return; (viii) consent to any extension or waiver of the limitation period applicable to any Tax claim; or (ix) enter into any agreement with a Governmental Authority relating to Taxes, including the settlement of any claim or Liability for Taxes; (xii) mortgage, pledge or subject to Liens (any Encumbrance, other than Permitted Liens)Encumbrances, any propertyof its material assets, business the Purchased Assets or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the ClosingLeased Real Property; (dxiii) incur adopt a plan of liquidation, dissolution, merger, consolidation or permit to be incurred other reorganization or file a petition in bankruptcy under any Liability (other than Accounts Payable provisions of federal or in connection with the performance of Assumed Contracts) that would be state bankruptcy Law or would increase an Assumed Liability as of or subsequent consented to the Closingfiling of any bankruptcy petition against it under similar law; (exiv) fail make any capital expenditure or enter into any Contract or commitment therefor with respect to replenish the Inventory and Supplies of the Business in excess of One Hundred Thousand Dollars ($100,000) individually or in the ordinary course of businessaggregate; (fxv) increase except in the salary Ordinary Course of Business, grant any Identified Employee at exclusive license or after the time such person becomes an Identified Employeesublicense of, assign, transfer, permit to lapse or otherwise dispose of, any Business Intellectual Property; (xvi) accelerate, write off or discount any Account Receivable or collect any Account Receivable other than in the ordinary course Ordinary Course of business consistent with past practiceBusiness; (gxvii) make settle or rescind compromise any material Tax election litigation or take any material Tax position other disputes (unless required by law) whether or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected commenced prior to affect the Buyerdate of this Agreement); (hxviii) institutedelay paying payables or other Liabilities (including those that would constitute Assumed Liabilities) when due or defer expenses or, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to otherwise increase cash on hand outside of the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired AssetsOrdinary Course of Business; (ixix) transfer or grant implement any rights under, modify any existing rights under, or enter into any settlement regarding employee layoffs requiring notice under the breach or infringement of, any material Intellectual PropertyWARN Act; or (jxx) enter into any Contract agree in writing, orally or otherwise to do any of the foregoing.

Conduct of Business Pending the Closing. During the period from (a) The Company agrees that between the date of this Agreement and continuing until the earlier Effective Time, except as set forth in Section 5.1(a) of the termination Company Disclosure Letter, as expressly permitted or required by this Agreement, or as required by applicable Law, by a Governmental Entity of this Agreement competent jurisdiction or by the rules or requirements of the New York Stock Exchange, unless Parent shall otherwise agree in accordance with its terms writing (which agreement shall not be unreasonably withheld, delayed or the Closingconditioned), the Company shall, will and shall will cause each of its Subsidiaries Company Subsidiary to, carry on the Business (a) conduct its operations only in the ordinary course of business andbusiness, (b) comply in all material respects with all Laws, orders and Company Permits applicable to the extent consistent therewiththem, and (c) use all its commercially reasonable best efforts to preserve the Business substantially intact its business organization and preserve the goodwill of and maintain satisfactory relationships with third parties and Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others Entities having significant business dealings with it and to keep available the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date services of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value its key officers and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1employees. Without limiting the generality foregoing, except as set forth in Section 5.1(a) of the first sentence Company Disclosure Letter, as expressly permitted or required by this Agreement, or as required by applicable Law, by a Governmental Entity of this Section 7.1, during competent jurisdiction or by the period from rules and requirements of the date of this Agreement through the Closing DateNew York Stock Exchange, the Company shall not, and shall not permit any of its Subsidiaries Company Subsidiary to, between the date of this Agreement and the Effective Time, do any of the following without the prior written consent of Buyer:Parent (which consent shall not be unreasonably withheld, delayed or conditioned): (ai) abandon amend its Certificate of Incorporation, By-laws or equivalent organizational documents; (ii) issue or authorize the issuance, pledge, transfer, subject to any Lien, sell or otherwise encumber or dispose of, any Equity Interests in the Company or any Company Subsidiary, or securities convertible into, or exchangeable or exercisable for, any such Equity Interests, or any rights under of any kind to acquire any such Equity Interests or such convertible or exchangeable securities, other than (A) grants of Company Options, Restricted Stock and Other Equity-Based Awards, but only if and to the Assumed Contracts; terminate, amend, modify extent required by Law or supplement permitted by the terms of any Assumed Contract; Company Equity Plan or fail to honor or performthe Company’s 401(k) plan in each case as in effect as of the close of business on the Business Day immediately preceding the date of this Agreement and not exceeding an aggregate value at the time of grant of $5,000,000 in any calendar year, the Assumed Contracts; (b) other than sales of Inventory in each case, in amounts, at times and on terms and conditions as in the ordinary course of business or business; (B) the disposition issuance of obsolete equipmentShares upon the exercise of Company Options outstanding as of February 17, lease2012, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose permitted to be granted under clause (A) of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liensthis Section 5.1(a)(ii), any propertyand the vesting or settlement of Other Equity-Based Awards outstanding as of February 17, business 2012, or any otherwise permitted to be granted under clause (A) of this Section 5.1(a)(ii), in accordance with their terms; and (C) the issuance of Equity Interests in a wholly owned Company Subsidiary to its parent, in each case of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; foregoing clauses “(d) incur or permit to be incurred any Liability A)” through “(other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business C)” in the ordinary course of business; (fiii) increase sell, pledge, dispose of, transfer, lease, license or encumber any material property or assets of the salary Company or any Company Subsidiary, except pursuant to existing Company Scheduled Contracts and except for (x) dispositions of obsolete equipment or assets, in each case, in the ordinary course of business consistent with past practice, or (y) dispositions in amounts not to exceed $4,000,000 individually or $15,000,000 in the aggregate; (iv) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than (A) regular quarterly cash dividends paid by the Company at the times and in the manner paid in the past by the Company and in an amount per share of Company Common Stock not more than $0.555 for quarterly dividends paid for periods commencing prior to the date which is nine (9) months after receipt of the Company Shareholder Approval, and not more than $0.57 for quarterly dividends paid for periods commencing after the date which is nine (9) months after receipt of the Company Shareholder Approval, (B) dividends payable on any shares of the Utility Subsidiary Preferred Stock pursuant to their terms, (C) dividends paid by a wholly-owned Company Subsidiary to the Company or another wholly-owned Company Subsidiary or (D) dividend equivalent rights on Other Equity-Based Awards payable by the Company pursuant to the Company Equity Plans), enter into any agreement with respect to the voting or registration of its Equity Interests or reduce its authorized capital; (v) other than (A) in the case of wholly-owned Company Subsidiaries, (B) in the case of cashless exercises of Company Options, or Tax withholdings on the vesting or payment of Restricted Stock and Other Equity-Based Awards or (C) the redemption of Utility Subsidiary Preferred Stock pursuant to the terms of such Utility Subsidiary Preferred Stock or Section 5.14, reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its Equity Interests; (vi) merge or consolidate the Company or any Company Subsidiary with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary; (vii) acquire (including by merger, consolidation or acquisition of stock or assets) any interest in any Person or any assets, other than acquisitions of (A) inventory in the ordinary course of business or (B) any assets for consideration that is individually not in excess of $4,000,000, or in the aggregate not in excess of $15,000,000; (viii) incur any indebtedness for borrowed money or issue any debt securities, or assume or guarantee the obligations of any Identified Employee at Person (other than a wholly-owned Company Subsidiary) for borrowed money, except (A) in connection with refinancings of existing indebtedness for borrowed money as such indebtedness matures upon market terms and conditions, so long as the amount of Indebtedness (or after credit facility capacity) following such refinancing shall not exceed the time amount of Indebtedness (or credit facility capacity) immediately prior to the refinancing, (B) draw-downs of credit facilities outstanding as of the date hereof (or refinancings of such person becomes an Identified Employeecredit facilities permitted under clause (A)) in the ordinary course of business or (C) for borrowings in the ordinary course of business in accordance with the financing plan set forth in Section 5.1(a)(viii) of the Company Disclosure Letter; (ix) make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Company Subsidiary) in excess of $7,500,000 in the aggregate other than as set forth in the Company’s capital expenditures budget as disclosed in Section 5.1(a)(xiii) of the Company Disclosure Letter; (x) except to the extent required by Law (including to avoid the imposition of penalty taxes under Section 409A of the Code) or the existing terms of any Company Benefit Plan: (A) other than in the ordinary course of business consistent with past practice, increase the compensation or benefits payable or to become payable to its directors or officers, or other than in the ordinary course of business, increase the compensation or benefits payable to employees; (B) grant any rights to severance or termination pay to, or enter into or amend any employment or severance agreement with, any director, executive officer or, other than in the ordinary course of business, employee of the Company or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, employment, termination, severance or other plan or agreement for the benefit of any director, executive officer or, other than in the ordinary course of business, employee; or (C) other than in connection with the consummation of the Merger, take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; (gxi) (A) make any material Tax election, (B) settle or compromise any material liability for Taxes, or (C) file any material amendment to Tax Returns, in each case in a manner which is (x) not in the ordinary course of business or (y) inconsistent with the past practices of any of the Company or any Company Subsidiary, as applicable, with respect to the treatment of items on such Tax Returns; (xii) make any material change in accounting policies or procedures, other than as required by GAAP; (xiii) make or rescind commit to make any capital expenditures, in the period from the date hereof until December 31, 2012, or in the twelve (12) month period ending December 31, 2013, that in the aggregate exceed the Company’s capital expenditures budget as disclosed in Section 5.1(a)(xiii) of the Company Disclosure Letter for such period plus $10,000,000 in either such period; provided, however, that notwithstanding the foregoing, the Company and any Company Subsidiary shall be permitted to make emergency capital expenditures in any amount (A) required by a Governmental Entity or (B) that the Company determines is incurred in connection with the repair or replacement of facilities destroyed or damaged due to casualty or accident or natural disaster or other force majeure event necessary to maintain or restore safe, adequate and reliable natural gas and electric service to customers; provided, that the Company shall use commercially reasonable efforts to consult with Parent prior to making or agreeing to make any such expenditure; (xiv) terminate or permit any material Tax election Company Permit to lapse, other than in accordance with the terms and regular expiration of any such Company Permit, or take fail to apply on a timely basis for any renewal of any renewable material Company Permit; (xv) (A) enter into, terminate early, amend or modify in any material Tax position respect a Company Scheduled Contract, other than in the ordinary course of business, or (unless required by lawB) waive, release, assign, pay, discharge, settle or file satisfy any Tax Return material claims, liabilities or change its fiscal year obligations (whether absolute, accrued, asserted or financial unasserted, contingent or Tax accounting methodsotherwise), policies other than the waiver, release, assignment, payment, discharge, settlement or satisfaction of any such claims, liabilities or obligations in the ordinary course of business consistent with past practices, or settle any Tax Liability, except as required by their terms as in each case as would not reasonably be expected to affect effect on the Buyerdate of this Agreement; (hxvi) announce, implement or effect any reduction in force, lay-off, early retirement program, severance program (except as permitted by Section 5.1(a)(x)(B)) or other program or effort concerning the termination of employment of employees of the Company (other than employee terminations in the ordinary course of business); (xvii) institute, settle settle, or agree to settle any litigation, action investigation, proceeding, or Proceeding other claim pending or threatened before any arbitrator, court or other Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to involving the Business payment of an amount in excess of $2,000,000 individually or $5,000,000 in the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assetsaggregate; (ixviii) transfer except for transactions between (A) the Company and wholly-owned Company Subsidiaries or grant (B) among wholly-owned Company Subsidiaries, redeem, repurchase, defease, cancel or otherwise acquire any rights underIndebtedness, modify other than (w) at or within one hundred twenty (120) days of stated maturity, (x) pursuant to any existing rights underrequired amortization payments and mandatory prepayments or (y) in connection with refinancings permitted by clause (viii) above, or (z) in the ordinary course of business in accordance with the financing plan set forth in Section 5.1(viii) of the Company Disclosure Letter; (xix) (A) permit any material change in policies governing or otherwise relating to energy price risk management or marketing of energy or (B) enter into any settlement regarding physical commodity transactions, exchange-traded futures and options transactions, over-the-counter transactions and derivatives thereof or similar transactions other than as permitted by the breach Trading Guidelines; (xx) other than in the ordinary course of business, make or infringement ofagree to any material changes to be made to any insurance policies so as to affect the insurance coverage of the Company or any Company Subsidiary or their respective assets following the Closing; (xxi) seek to lower any reference price or bid or cap price for energy or capacity sold wholesale by the Company or any Company Subsidiary, other than in the ordinary course of business, consistent with current business practices; (xxii) assign or license any material Intellectual PropertyProperty owned by the Company or any Company Subsidiary to any third party; or (jxxiii) authorize or enter into any Contract to do any of the foregoing. Parent will, promptly following the date hereof, designate two individuals from either of whom the Company may seek approval to undertake any actions not permitted to be taken under this Section 5.1(a), and will ensure that such persons will respond, on behalf of Parent, to the Company’s requests in an expeditious manner but in any event no later than two (2) Business Days after the Company’s request. (b) The Company shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement and the Effective Time, without, in each case, first consulting in good faith with Parent (i) hire any officer of the Company who would earn more than $200,000 in annual base salary or fix the compensation of such newly hired officer or terminate the employment, other than for cause, of any officer of the Company who earns more than $200,000 in annual base salary, (ii) notwithstanding anything set forth in Section 5.1(a)(viii), incur long term Indebtedness, whether contemplated or not by the financing plan set forth in Section 5.1(a)(viii) of the Company Disclosure Letter, in excess of $5,000,000 in the aggregate and (iii) notwithstanding anything set forth in Sections 5.1(a)(ix) and (xiii), make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Company Subsidiary), or make or commit to make any capital expenditures, in each case, in any way related to or in connection with the project referred to on Section 3.1(b)(C) of the Company Disclosure Letter, in excess of $5,000,000 in the aggregate. The individuals with whom the Company is to consult with respect to each of clauses (i) through (iii) of this Section 5.1(b) shall be the individuals designated pursuant to Section 5.1(a).

Conduct of Business Pending the Closing. During the period from Interim Period, Seller will operate and maintain the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business Acquired Assets in the ordinary course of business andconsistent with Good Utility Practice, unless otherwise expressly contemplated by this Agreement or with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed). Good Utility Practice during the Interim Period shall include, but not be limited to, the following: to the extent consistent therewithSeller experiences a GADS Event, use all commercially reasonable efforts Seller will cure in accordance with Good Utility Practice the cause of such GADS Event for each Facility such that it reports in GADS as available an amount of capacity equal to preserve the Business intact and preserve the goodwill or greater than each Facility’s applicable Capacity Supply Obligation as of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1foregoing, during the period from the date of except as otherwise expressly contemplated by this Agreement through the Closing Dateor as set forth in Schedule 5.5, the Company Seller shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyerthe Buyer (which consent shall not be unreasonably withheld or delayed), during the Interim Period, with respect to the Acquired Assets or Assumed Liabilities: (a) abandon any rights under any of Except for Acquired Assets used at or consumed by the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory Facilities in the ordinary course of business consistent with Good Utility Practice, and except for sales or the disposition dispositions of obsolete equipmentor surplus assets in connection with the normal repair or replacement of assets or properties, lease, license, surrender, relinquish, (i) sell, transferlease (as lessor), conveylicense (as licensor), assign transfer or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, or (ii) encumber, pledge, mortgage or suffer to be imposed on any of the Acquired Assets any Lien other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the ClosingPermitted Liens; (db) incur or permit to be incurred Make any Liability (other than Accounts Payable or material change in connection the levels of Inventories customarily maintained by the Seller with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent respect to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary Acquired Assets, except for such changes that are consistent with Good Utility Practice, nor transfer, sell or otherwise acquire or dispose of any Identified Employee at or after the time such person becomes an Identified Employee, other than assets described in Section 2.1(c) except in the ordinary course of business consistent with past practicepractices; provided, however, that Seller shall consult with Buyer with respect to the purchase of any fuel Inventory during the Interim Period, the terms of which purchase shall be subject to Buyer’s prior written approval, not to be unreasonably withheld, conditioned or delayed; provided, further, that Seller shall consult with Buyer with respect to the purchase of any non-fuel Inventory during the Interim Period in excess of Five Hundred Thousand Dollars ($500,000) in the aggregate, the terms of which purchase shall be subject to Buyer’s prior written approval, not to be unreasonably withheld, conditioned or delayed; (gc) (i) Terminate, make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methodswaiver under, policies or practicesextend, materially amend, or settle renew or replace any Tax LiabilityMaterial Contract, Assigned Lease or Transferable Permit, except in connection with transferring Seller’s rights or obligations thereunder to the Buyer pursuant to this Agreement; or (ii) enter into or commit to enter into any Contract that would be a Material Contract, in each case without the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed). Except with the prior written consent of Buyer (which consent may be granted or withheld by Buyer in its sole discretion), Seller shall not enter into any Contract relating to the ownership or operation of the Acquired Assets or the operation of the Business, except for any Contract (w) entered into in the ordinary course of business that will be terminated or fully performed prior to the Closing (without assignment to, or any continuing Liability of, Buyer on or after the Closing), (x) that can be freely assigned to Buyer at the Closing and terminated by Buyer at its option at any time on or after the Closing without penalty or cancellation charge, (y) that can be freely assigned to Buyer at the Closing and that does not increase an Assumed Liability or which increases an Assumed Liability by an amount of Two Hundred Fifty Thousand Dollars ($250,000) or less individually or One Million Dollars ($1,000,000) or less in the aggregate with other such Contracts, or (z) as may be required or permitted pursuant to Section 5.3 or to implement another provision of this Section 5.5, so long as such Contract can be freely assigned to Buyer at the Closing; provided that, during the Interim Period, Schedule 2.1(e), be amended to account for any Contract permitted under this Section 5.5(c); (d) Enter into, amend, or otherwise modify any real or personal property Tax agreement, treaty or settlement that would not reasonably be expected to affect the BuyerTax Liabilities of Buyer or any of its Affiliates in a material manner for any taxable year or period ending after the Closing Date; (he) instituteMake, settle or agree enter into any commitment to settle make, any litigation, action or Proceeding before any court or Governmental Entity capital expenditures relating to the Acquired Assets, Facilities or modify Sites, except for those capital expenditures or commitments necessitated by Good Utility Practice and which will be paid in any manner that is adverse full prior to the Business or the Acquired AssetsClosing, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating provided that if not paid in full prior to the Business Closing, not more than Two Hundred Fifty Thousand Dollars ($250,000), in the aggregate, will be payable at any time from and after the Closing; (f) Increase the level of wages, compensation or other benefits of any Scheduled Employee, except as required pursuant to the Acquired AssetsGeneration CBA or applicable Law or in accordance with Seller’s ordinary course of business consistent with past practices; provided, however, that such increase shall not in the aggregate, together with any increases resulting from Seller’s or its Affiliates’ actions set forth in Section 5.5(g) below, exceed the greater of a three percent (3%) of the Scheduled Employees’ wages or Two Hundred Fifty Thousand Dollars ($250,000) annually; (ig) transfer Terminate the employment of any Scheduled Employee except for cause, or grant hire any rights underemployee who would be a Scheduled Employee (other than to replace or fill vacancies), modify in each case, other than as consistent with past practices, without first consulting with Buyer; provided, however, that any existing rights undersuch hiring shall not, in the aggregate and, together with any increases resulting from Seller’s or its Affiliates’ actions set forth in Section 5.5(f) above, exceed Two Hundred Fifty Thousand Dollars ($250,000) annually; provided further, that, during the Interim Period, Schedule 3.12(a) shall be amended to reflect any changes in the Scheduled Employees listed thereon that are permitted under this Section 5.5(g); or (h) Except as required by Law, agree to any amendment to or waiver of any term of the Generation CBA, or enter into any settlement regarding new collective bargaining agreement with respect to any Scheduled Employees. Notwithstanding anything to the breach contrary herein, Seller may take commercially reasonable actions with respect to emergency situations or infringement ofas required by Law as reasonably determined by Seller and without Buyer’s prior written consent, so long as Seller shall promptly inform Buyer upon taking any material Intellectual Property; or (j) enter into any Contract to do any of the foregoingsuch action.

Conduct of Business Pending the Closing. During the period from the date of Interim Period, and except (i) as required by Law, (ii) as expressly permitted or required by this Agreement and continuing until or the earlier Separation Agreement, (iii) as set forth on Section 5.2 of the termination Company Disclosure Schedules or (iv) with the consent of this Agreement in accordance with its terms Buyer, which consent shall not be unreasonably withheld, conditioned or the Closingdelayed, the Company shall, and shall cause each of Company Entity, as applicable, (x) to conduct its Subsidiaries to, carry on the Business business in the ordinary course of business and, to the extent consistent therewith, with past practices and use all commercially reasonable efforts to preserve the Business intact its present business organizations and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without (y) without limiting the generality of the first sentence of this Section 7.1foregoing clause (x), during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon incur any rights under additional Indebtedness for borrowed money in excess of $1,000,000 or grant any of the Assumed Contracts; terminateguarantee in respect thereof, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or incurred under the disposition Credit Facility; (b) (i) declare, set aside or pay any dividend or other distribution, other than cash dividends or other cash distributions in respect of obsolete equipmentany Company Common Shares or Company Preferred Shares or dividends paid in kind in respect of any Company Preferred Shares in accordance with the Certificate of Designation, leaseas in effect on the date hereof, license, surrender, relinquish, or (ii) declare or authorize any dividend or other distribution (including in cash) if the record date therefor is prior to the Closing and payment date therefor is after the Closing; (c) (i) sell, transfer, convey, assign grant any Encumbrance (other than a Permitted Encumbrance) on or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business Owned Real Property or any of the Acquired Assetsportion therein; or (ii) amend, other than as would not result in terminate, exercise any Liability that would be option, waive any material term under or would increase an Assumed Liability as of fail to use reasonable efforts to enforce any Company Lease or subsequent enter into any new lease or sublease with respect to the Closingany real property; (d) incur acquire (whether by merger, consolidation, acquisition of stock or permit to be incurred assets or otherwise), directly or indirectly, any Liability (material assets, other than Accounts Payable or in connection with the performance (A) pursuant to existing Contracts, accurate and complete and correct copies of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent which have been made available to Buyer prior to the Closingdate hereof or (B) in the ordinary course of operating the business; (e) sell, lease or otherwise dispose of (whether by merger, consolidation, acquisition or disposition of stock or assets or otherwise) any of its properties or assets that are material to its business, other than (A) pursuant to existing Contracts, accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof or (B) in the ordinary course of operating the business; (f) grant, issue, sell or otherwise dispose of any of the Equity Securities of any Company Entity, other than, if applicable, the conversion of the Company Preferred Shares into Company Common Shares in accordance with the Organizational Documents of the Company; (g) merge or consolidate with or into any other Person, or adopt a plan or agreement of complete or partial dissolution, liquidation, restructuring, recapitalization or other reorganization; (h) (i) amend, terminate (other than a termination related to a default by the counterparty under the applicable Material Contract) or waive any material term under or fail to replenish the Inventory and Supplies use commercially reasonable efforts to enforce any Material Contract; or (ii) enter into any new Contract that would have been a Material Contract had it been in effect as of the Business date hereof, in each case, other than in the ordinary course of business; (fi) make any change in its material accounting policies or practices, except as required by GAAP or applicable Law; (j) except as required by the terms and provisions of any Employee Plan or Collective Bargaining Agreement, in each case, as in effect on the date of this Agreement: (i) adopt, materially amend or terminate any Employee Plan or Collective Bargaining Agreement, except for such amendments necessary to implement the transactions contemplated by the Separation Agreement; (ii) provide any loans to, or increase the salary of compensation or benefits of, any Identified Employee at or after the time such person becomes an Identified EmployeeCompany Associate, other than compensation increases in the ordinary course of business consistent with past practicepractices for Company Associates below the level of director; (iii) with respect to any Company Associate, (A) accelerate the vesting or payment of any compensation or benefits or (B) grant or modify any severance, termination, change in control or retention payment or benefit; (iv) change any actuarial or other assumption used to calculate funding obligations with respect to any Employee Plan or change the manner in which contributions to any Employee Plan are made or determined; or (v) take any action that would affect whether or not an individual is classified as a Company Associate, except for (A) hiring or terminating Company Associates below the level of director in the ordinary course of operating the business consistent with past practices, (B) terminating Company Associates for cause (as reasonably determined by the Company Entities and their Affiliates) or (C) transferring any employee of a Company Entity who, as of the date of this Agreement, is not primarily engaged in the operation of the Business; (gk) enter into any agreement, arrangement or other understanding, whether or not in writing, with the IRS, PBGC, DOL or any other Governmental Entity with respect to, or affecting, the Pension Plan, including any undertaking or promise relating to funding or notification obligations; (l) amend or modify its Organizational Documents; (m) amend or modify the Separation Agreement or any Separation Document entered into prior to the date hereof in a manner that is or would reasonably be expected to be adverse to the Buyer, the Company Entities or the Business (other than such impacts that are reasonably expected to be only de minimis in nature); (n) mortgage, pledge or subject to any Encumbrance (other than Permitted Encumbrances) any of its material assets, other than pursuant to existing Contracts, accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof; (o) transfer, assign, sell, lease, license, sublicense, abandon, permit to lapse or expire any material Intellectual Property (other than (A) pursuant to existing Contracts, accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof or (B) an abandonment, expiration or failure to renew or maintain any registered Intellectual Property not material to the Business in the ordinary course of business); (p) engage in any new line of business; (q) acquire (whether by merger, consolidation, acquisition of stock or otherwise) any Equity Securities of any Person other than a Company Entity, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices; (r) make any capital expenditures in any fiscal year that are in the aggregate in excess of (i) the amounts set forth in the financial model attached hereto as Schedule B plus (ii) 10% of such amounts; (s) settle any pending or rescind threatened Legal Proceeding other than (i) any settlement if the amount to be paid by any Company Entity in such settlement does not exceed the amount that would be expected to be paid or reimbursed under insurance policies or (ii) for an amount not in excess of $500,000 individually or $2,000,000 in the aggregate, provided that such settlement does not result in any continuing obligations (other than customary confidentiality obligations) of any Company Entity and does not involve any injunctive or equitable relief, or impose restrictions (other than customary confidentiality obligations) on any Company Entity; (t) other than as expressly set forth in the Separation Agreement, (i) make, change or revoke any material Tax election or take change any method of accounting in respect of Taxes, (ii) settle or compromise any claim or assessment relating to a material amount of Taxes or (iii) amend any U.S. federal income or other material Tax position Return; or (unless required by lawu) agree or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract commit to do any of the foregoing. Nothing contained in this Agreement shall be deemed to directly restrain any actions taken by any Red Store Entity or to give Buyer, directly or indirectly, any right to control or direct the business or operations of any Company Entity prior to the Closing. Prior to the Closing, the Company Entities shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective businesses, assets and operations.

Conduct of Business Pending the Closing. During (a) Except as set forth in Schedule 8.1(a), except as contemplated by this Agreement or by any of the Ancillary Agreements or by the Landmark Purchase Agreement, and except with the written consent of Purchaser (which consent shall not be unreasonably withheld or delayed), during the period from the date hereof to the Closing Date, Seller shall cause RSUI and each other Affiliate of Seller (provided, however, with respect to sub clauses (i) through (iii) of this Agreement Section 8.1(a), only to the extent that the conduct of Affiliates of Seller other than RSUI relate to the Business) to (i) use commercially reasonable efforts to preserve intact its business organizations and continuing until Permits, to keep available the earlier services of the termination of this Agreement in accordance with its terms or the Closing, the Company shallofficers and employees, and shall cause each to maintain its relationships with and the goodwill of its Subsidiaries toagents, carry on brokers, customers, suppliers, regulators, reinsurance intermediaries and other Persons having business dealings with RSUI or its Affiliates in connection with the Business, (ii) conduct the Business in the ordinary course consistent with past practice, (iii) maintain its books, records and accounts in the usual manner consistent with past practice and (iv) maintain and keep its properties and equipment relating to the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. past practice. (b) Without limiting the generality of the first sentence foregoing, except as set forth in Schedule 8.1(a), except as contemplated by this Agreement or by any of this Section 7.1the Ancillary Agreements or by the Landmark Purchase Agreement, and except with the written consent of Purchaser (which consent shall not be unreasonably withheld or delayed), during the period from the date of this Agreement through hereof to the Closing Date, the Company shall not, and shall not permit : (i) neither Seller nor any of its Subsidiaries toAffiliates (including RSUI) shall (A) enter into, without the prior written consent of Buyer: (a) abandon renew, terminate, fail to renew, fail to perform any obligations under, waive or release any rights under or amend in any material respect any Material Business Contract or Business IP Contract, (B) enter into any new contract that would be a Material Business Contract, (C) enter into any new contract that would be an Intellectual Property Contract which would directly impact or materially relate to RSUI or the operation of the Assumed Contracts; terminateBusiness, amend(D) enter into any other new contract that would be material to RSUI or the operation of the Business, modify or supplement including, without limitation, contracts relating to the terms implementation of any Assumed Contract; new systems applications affecting RSUI or the Business, (E) fail to honor maintain in effect any contract or performagreement for the maintenance or support of any software or equipment used by RSUI or the Business, or (F) exercise any option under any lease relating to leased property used by RSUI or the Assumed ContractsBusiness; (bii) other than sales neither Seller nor any of Inventory in the ordinary course of business its Affiliates (including RSUI) shall acquire or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge asset relating to RSUI or subject to Liens (other than Permitted Liens), any property, business the Business or any that presently does or would at the Closing constitute part of the Acquired Assets, in each case, other than as would not result in any Liability that would be acquisitions or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business dispositions in the ordinary course of business; (fiii) increase Seller shall not permit RSUI to use its own funds to pay, discharge or satisfy any claims, liabilities or obligations associated with the salary Business (absolute, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business, and Seller shall not make any capital contribution to RSUI except in the form of cash; (iv) Seller shall not permit RSUI to incur any indebtedness for borrowed money or guarantee such indebtedness of another or make any loans or advances or make any capital contributions to, or equity investments in, any other Person or issue or sell any debt securities, other than short-term indebtedness under existing lines of credit in the ordinary course of business; (v) Seller shall not permit RSUI to authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, call, commitments, subscriptions, rights to purchase or otherwise) any stock of any Identified Employee at class or after series or any other equity interest, or any bonds, debentures, notes, surplus notes, other evidences of indebtedness for borrowed money or other securities of any kind, including, without limitation, any stock options or stock appreciation rights or any securities convertible into or exchangeable or exercisable for any of the time foregoing; (vi) Seller shall not permit RSUI to acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or assets comprising a business or make any material investment, either by purchase of stock or other securities, or contribution to capital, in any case, in any material amount of property or assets, in or of any other Person; (vii) neither Seller nor any of its Affiliates (including RSUI) shall make any material change in the underwriting policies or claims handling practices used by RSUI or any of the Royal Insurer Affiliates in connection with the operation of the Business as conducted on the date hereof, except as required by Applicable Law; (viii) neither Seller nor any of its Affiliates (including RSUI) shall permit or allow any of the assets or properties of RSUI or the Acquired Assets to become subject to any Liens, except Permitted Liens; (ix) Seller shall not permit RSUI to amend or modify its certificate or articles of incorporation, bylaws or other charter or organization documents; (x) Seller shall not permit RSUI to split, combine or reclassify any shares of its capital stock, or declare, pay or set aside any sum for any dividend or other distribution (whether in cash, stock or property, any combination thereof or otherwise) in respect of its capital stock, or redeem, purchase or otherwise acquire (or agree to redeem, purchase or otherwise acquire) any of its capital stock or any of its other securities; (xi) Seller shall not permit RSUI to adopt a plan of complete or partial liquidation, dissolution, rehabilitation, merger, consolidation, restructuring, recapitalization, redomestication or other reorganization; (xii) Seller shall not permit RSUI to purchase or sell securities or other investments, or invest or reinvest income and proceeds in respect thereof, other than in the ordinary course of business and in accordance with Applicable Law; (xiii) Seller shall not permit RSUI to make or authorize or commit any capital expenditures other than those in the ordinary course of business consistent with past practice which do not exceed $50,000 individually or $250,000 in the aggregate; (xiv) Seller shall not permit RSUI to enter into any managing general agency contracts, third party administration contracts or other similar arrangements or commitments, or amendments, supplements or modifications thereto relating to the Business with any independent third party under which such person becomes an Identified Employeeindependent third party has authority to perform underwriting analysis and issue insurance or reinsurance policies on behalf of RSUI or otherwise bind RSUI without prior approval by RSUI; (xv) neither Seller nor any of its Affiliates (including RSUI) shall take any action that would result in any of the conditions to Closing set forth in this Agreement not being satisfied; (xvi) Seller shall not permit RSUI to make any material change in its accounting methods or practices or make any material change in depreciation or amortization policies or rates adopted by it, except such changes as are required by GAAP or SAP; (xvii) Seller shall not permit RSUI to, directly or indirectly, make any payment, discharge or satisfaction of any liability of RSUI before the same became due in accordance with its terms, other than in the ordinary course of business consistent with past practice, or as fully reflected or reserved against in the Audited RSUI Financial Statements or the Closing Balance Sheet; (gxviii) make neither Seller nor any of its Affiliates (including RSUI) shall assign, license, sublicense, abandon or rescind fail to maintain any material Tax election Business Intellectual Property except as provided and expressly set forth in Section 9.1(a) herein; provided, however, that this provision shall not apply to any Royal Group Intellectual Property other than the RSUI Xxxx and the Xxxx Registration; and, provided, further, that for clarification purposes, this provision shall not apply to any Business IP Contracts that do not directly impact or materially relate to the Business; and (xix) neither Seller nor any of its Affiliates (including RSUI) shall, nor shall Seller permit RSUI to, as applicable, agree in writing or otherwise to take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except of the actions described above in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; clauses (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or through (jxviii) enter into any Contract to do any of the foregoingthis Section 8.1(b).

Conduct of Business Pending the Closing. During the period from the date of Except as set forth on Schedule 5.1 or as contemplated by this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the ClosingAgreement, the Company shall, and shall cause each of its Subsidiaries to, (a) Seller will carry on the Business in the ordinary course of business andcourse, to in accordance with all Applicable Laws and in substantially the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall notsame manner as previously conducted, and shall not permit any of its Subsidiaries to, (b) without the prior written consent of BuyerParent (which consent shall not be unreasonably withheld), Seller will not, directly or indirectly, and Zenith will not permit Seller to, directly or indirectly: A. Cancel or terminate or permit to be canceled or terminated Seller's current insurance (aor reinsurance) abandon any rights under policies or permit any of the Assumed Contracts; terminatecoverage thereunder to lapse, amendunless simultaneous with such termination, modify cancellation, or supplement lapse, replacement policies providing coverage equal to or greater than the terms coverage under the canceled, terminated, or lapsed policies for substantially similar premiums are in full force and effect; B. Sell, lease, encumber, or otherwise dispose of any Assumed Contract; or fail to honor or performof the Acquired Assets other than, in the case of lots and homes held for sale in the ordinary course, the Assumed Contracts; (b) other than sales sale of Inventory such lots or homes in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assetsas previously conducted; (c) mortgage, pledge C. Acquire or subject enter into any option or other agreement to Liens (acquire any real property or other than Permitted Liens), material assets; D. Intentionally default under any property, business Material Contract; E. Intentionally violate or fail to comply in any of material respect with any Applicable Laws; F. Fail to maintain and repair the Acquired Assets, other than as would not result Assets in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection accordance with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; G. Except as contemplated by this Agreement or in the ordinary course of business, enter into any employment, severance, or similar agreements or arrangements with, or adopt, modify or amend any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment, severance or other benefit plan, trust, fund, or group arrangement resulting in a material increase in benefits to employees, officers, directors or consultants of Seller; H. Except in the ordinary course of business, consistent with past practices, modify or terminate any of the Acquired Contracts or enter into any new contracts; I. Acquire (fby merger, exchange, consolidation, acquisition of stock or assets, or otherwise) increase any corporation, partnership, joint venture, or other business organization or division or material assets thereof; J. Issue or create any additional shares of Seller; K. Except as contemplated by this Agreement, enter into any obligations, subscriptions, options, or other commitments under which any additional shares of Seller might be directly or indirectly authorized, issued, or transferred, or incur any indebtedness for borrowed money or issue any debt securities except the salary borrowing of any Identified Employee at or after the time such person becomes an Identified Employee, other than working capital in the ordinary course of business and consistent with past practice; (g) make or rescind L. Except in the ordinary course of business, consistent with past practices, pay any material Tax election obligation or take liability, fixed or contingent, other than current liabilities; M. Waive or compromise any material Tax position right or claim (unless other than as required by lawto resolve any pending or threatened litigation disclosed in the Schedules attached hereto) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyerwarranty claims; N. Pay any dividends or make any distributions (hother than dividends or distributions of cash and cash equivalents (including to make quarterly tax payments)) institute, settle or agree from Seller to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired AssetsZenith; (i) transfer or grant O. Start more spec homes than is consistent with past practices; P. Commit any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Propertyact described in Section 4.10; or (j) enter into any Contract Q. Agree to do any of the foregoing.actions described in the preceding clauses A through P.

Conduct of Business Pending the Closing. During the period from (a) Between the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the ClosingClosing Date, the Company shall, and Seller shall cause each of the Companies to (x) operate and maintain its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than Assets in the ordinary course of business consistent with past practice; practices, and (gy) make or rescind any use commercially reasonable efforts to preserve, maintain and protect its Assets in material Tax election or take any material Tax position (unless required by lawcompliance with applicable Permits, Orders and Laws. Without limiting the foregoing, and except as set forth on Schedule ‎6.8(a) or file any Tax Return or change its fiscal year or financial or Tax accounting methodsas contemplated by the Restructuring, policies or practices, or settle any Tax Liabilitybetween the date of this Agreement and the Closing Date, except in each case as would otherwise expressly contemplated by this Agreement or as consented to by Buyer, which consent shall not reasonably be expected to affect the Buyer; unreasonably withheld, conditioned or delayed, Seller shall not (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating with respect to the Acquired AssetsBusiness), or modify in any manner that is adverse to and shall not permit the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets;Companies to: (i) transfer sell or grant dispose of (x) any rights undermaterial Business assets or any material Assets or (y) any Assets in excess of $100,000 individually (or $500,000 in the aggregate) of the Companies, modify other than sales or dispositions of obsolete or surplus Assets, sales and dispositions in connection with the normal and prudent repair or replacement of Assets, or sales or dispositions in accordance with any existing rights underMaterial Contract (other than, for the avoidance of doubt, any Contract that would be a Terminated Contract); (ii) create, incur or assume any Indebtedness (except Indebtedness repaid prior to Closing); (iii) merge or consolidate with any other Person or acquire all or substantially all of the assets of any other Person or enter into any joint venture, partnership or similar venture with any other Person; (iv) grant, issue, sell, or otherwise dispose of any of its equity interests, including granting options, warrants or other rights to acquire such equity interests; (v) effect any recapitalization, reclassification or like change in its capitalization; (vi) liquidate, dissolve, reorganize or otherwise wind up its business or operations; (vii) purchase any equity securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices; (viii) amend or modify its organizational documents; (ix) engage in any new line of business; (x) enter into, assign, amend, terminate or waive any material term under any Material Contract; (xi) discharge, settle or satisfy any material Actions; (xii) defer the payment, discharge, settlement regarding or satisfaction of any Liability outside the breach ordinary course of business consistent with past practices; (xiii) assign, terminate or infringement ofamend in any respect, or give any waiver or consent with respect to, any material Intellectual Property; orPermit or Order; (jxiv) enter into or amend any employment agreement; (xv) enter into any agreement with any labor union or association representing any employee, except as required by applicable Law; (xvi) make any loan, advance or capital contribution to or investment in any Person; (xvii) enter into any Contract with any Affiliate of Seller which will not be terminated pursuant to Section 6.9; (xviii) commence any litigation, arbitration or administrative or other proceeding; (xix) make, change or rescind any Tax election of the Companies, amend any material Tax Return of the Companies, extend the statute of limitations with respect to any Tax of the Companies, settle or compromise any Tax audit or enter into or amend any real or personal property Tax agreement, treaty or settlement that would affect the Tax liability of the Companies (for the avoidance of doubt, the foregoing limitations shall not apply to any Taxes or Tax Returns in respect of any consolidated, combined, unitary or aggregate group of which any Company is a member); or (xx) agree or commit to do any of the foregoing. (b) Between the date of this Agreement and the Closing Date, except as otherwise expressly contemplated by this Agreement or as consented to by Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, Seller shall cause its Affiliate(s) that are parties to the Assigned Agreements not to assign, amend, terminate or waive any material term under any Assigned Agreement. (c) Notwithstanding Section ‎6.8(a) and Section ‎6.8(b) or any other provision herein, Seller may cause the Companies or its Affiliates, as the case may be, to take commercially reasonable actions with respect to emergency situations or to comply with applicable Laws or Permits; provided, however, that Seller shall provide Buyer with notice of such action as soon as reasonably practicable.

Conduct of Business Pending the Closing. During Prior to the period from --------------------------------------- Closing, unless the date of this Agreement and continuing until the earlier other party shall otherwise agree in writing, each of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, parties hereto shall (and Buyer shall cause each of its Subsidiaries subsidiaries to): (i) Carry on its business in the usual, carry on regular and ordinary course in substantially the Business same manner as heretofore conducted, and shall use its best efforts to preserve intact its present business organization, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and on-going business shall be unimpaired at the Closing, except such impairment as would not have a Seller Material Adverse Effect or a Buyer Material Adverse Effect, as the case may be. Notwithstanding the foregoing, Seller may (y) sell certain accounts acquired from Xxxxxxxx, Inc. pursuant to the agreement described in Section 3.14 above which accounts are outside Seller's Franchise for the Phoenix, Arizona area and (z) enter into a distributorship agreement with Audio Environments Inc. permitting Seller to provide music subscription and related services in Arizona; provided, that Seller promptly provides Buyer with a copy of each such agreement. Each of the parties hereto shall (A) maintain insurance coverage and its books, accounts and records in the usual manner consistent with its prior practices; (B) comply in all material respects with all laws, ordinances and regulations of Governmental Entities applicable to such party; (C) maintain and keep its properties and equipment in good repair, working order and condition, ordinary wear and tear excepted; (D) perform in all material respects its obligations under all contracts and commitments to which it is a party or by which it is bound, in each case other than where the failure to so maintain, comply or perform, either individually or in the aggregate, would result in a Seller Material Adverse Effect or a Buyer Material Adverse Effect, as the case may be; and (E) take all actions and not suffer or permit any occurrence which would render any of the representations made by such party pursuant to this Purchase Agreement to be untrue in any material respect. (ii) Not and shall not propose to (A) in the case of Buyer, amend its Certificate of Incorporation or by-laws, and in the case of Seller, amend the Certificate of Formation or the Seller LLC Agreement (except that Seller may amend the Seller LLC Agreement in any respect which does not materially and adversely affect Seller's obligations under this Purchase Agreement, result in a Seller Material Adverse Effect or prevent or restrict the transfer of the Sale Assets), (B) split, combine or reclassify its outstanding capital stock or member interests or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock or member interests, or declare, set aside or pay any dividend or other distribution payable in cash, stock or property (except that Seller may make distributions for taxes), or (C) directly or indirectly redeem, purchase or otherwise acquire or agree to redeem, purchase or otherwise acquire any shares of capital stock or member interests; (iii) Not (A) issue, deliver or sell or agree to issue, deliver or sell any additional shares of, or rights of any kind to acquire any shares of, its capital stock or member interests of any class, any Indebtedness or any option, rights or warrants to acquire, or securities convertible into, shares of capital stock or member interests (except that Buyer may (1) issue 5,000 shares of Common Stock and options to purchase 5,000 shares of Common Stock to each of two managers, and (2) pay to each director $1,000 or issue to each director $1,000 worth of Common Stock for each meeting attended by such director since January 1, 1996); (B) acquire, lease, sell or dispose of or agree to acquire, lease, sell or dispose of any capital assets or any other assets other than in the ordinary course of business, (C) incur additional Indebtedness or encumber or grant a security interest in any asset or enter into any other material transaction other than in each case in the ordinary course of business; (D) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, in each case in this Clause (D) which are material, individually or in the aggregate, to such party; (E) merge or consolidate with or agree to merge or consolidate with any business or any corporation, partnership, association or other business organization; or (F) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; (iv) Except as contemplated by the Employment Agreement between Buyer and X.X. Xxxxxx in the form of Exhibit C hereto (the "Employment Agreement") -------------------- which shall be executed at Closing, not (A) adopt, enter into, terminate or materially amend any bonus, profit sharing, compensation, severance, termination, stock option, pension, retirement, deferred compensation, employment or other benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any of its directors, officers or current or former employees (except that Buyer may (1) issue 5,000 shares of Common Stock and options to purchase 5,000 shares of Common Stock to each of two managers, and (2) pay to each director $1,000 or issue to each director $1,000 worth of Common Stock for each meeting attended by such director since January 1, 1996), (B) increase in any manner the compensation or fringe benefits of any director, officer or employee (except as contemplated hereby and except for normal increases in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Dateconsistent with past practice and that, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipmentaggregate, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would do not result in any Liability that would be a material increase in benefits or would increase an Assumed Liability as of or subsequent compensation expense to such party relative to the Closing; level in effect prior to such amendment), (dC) incur pay any benefit not provided under any existing plan or permit to be incurred any Liability (other than Accounts Payable arrangement or in connection accordance with past practices, (D) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan, including, without limitation, the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of Assumed Contractsexisting restrictions in any benefit plans or agreements or awards made thereunder (except that Buyer may (1) that would be issue 5,000 shares of Common Stock and options to purchase 5,000 shares of Common Stock to each of two managers, and (2) pay to each director $1,000 or would increase an Assumed Liability as issue to each director $1,000 worth of Common Stock for each meeting attended by such director since January 1, 1996), (E) take any action to fund or subsequent to in any other way secure the Closing; (e) fail to replenish the Inventory and Supplies payment of the Business in the ordinary course of business; (f) increase the salary of compensation or benefits under any Identified Employee at employee plan, agreement, contract or after the time such person becomes an Identified Employee, arrangement or benefit plan other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability(F) adopt, except in each case as would not reasonably be expected to affect the Buyer; (h) instituteenter into, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind amend or terminate a material Permitany contract, allowanceagreement, commitment or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract arrangement to do any of the foregoing, except that (y) Seller's Management Agreement with SC Management (a true and correct copy of which has been previously provided to Buyer) may be terminated or amended contemporaneously with the Closing and (z) Seller may employ Xxxxxx Xxxxxxxxxxxx as a Vice President at a salary rate of $100,000 per annum.

Conduct of Business Pending the Closing. During From and after the period from the date execution and delivery of this Agreement and continuing until the earlier Closing Date, except as otherwise provided by the prior written consent or approval of the termination of this Agreement in accordance with its terms or Buyer: (1) The Seller will cause the Closing, the Company shall, Companies to conduct business and shall cause each of its Subsidiaries to, carry on the Business operations in the ordinary course of manner in which the same has heretofore been conducted and Seller will use its best efforts to cause the companies to: (i) preserve the Companies' current business andorganization intact, (ii) keep available to the extent consistent therewith, use all commercially reasonable efforts to Buyer the services of the Companies' and the Atlanta service center's current employees and the Companies' agents and distributors; and (iii) preserve the Business intact Companies' and preserve the goodwill of and Atlanta service center's current relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees suppliers and others having business dealings with the BusinessCompanies or the Atlanta Service Center. (2) The Seller will cause the Companies and the Atlanta service center to maintain all its properties in customary repair, provided order and condition, reasonable wear and use excepted, and will maintain its existing insurance upon all of its properties and with respect to the conduct of its business in such amounts and of such kinds comparable to that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from in effect on the date of this Agreement through the Closing Date, the Company shall endeavor Agreement. (3) The Seller will take action to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess insure that none of the amounts set forth on Schedule 7.1. Without limiting Companies will: (i) pay any bonus or increase the generality rate of compensation of any of the first sentence Companies' employees or enter into any new employment agreement or amend any existing employment agreement; (ii) make any general increase in the compensation or rate of this Section 7.1compensation payable or to become payable to the Companies' hourly-rated employees; (iii) sell or transfer any of the Companies' assets; (iv) obligate itself for capital expenditures other than in the ordinary course of business and not unusual in amount; or (v) incur any material obligations or liabilities, during which are not in the period from the date ordinary course of this Agreement through the Closing Datebusiness, the Company or enter into any material transaction. (4) The Seller shall not, and shall not permit any of its Subsidiaries the Companies to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, issue or enter into any settlement regarding the breach subscriptions, options, agreements or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any other commitments in respect of the foregoingissuance, transfer, sale or encumbrance of any shares of the Acquisition Stock.

Conduct of Business Pending the Closing. During the period from the date of this Agreement and continuing until the earlier of (i) the termination of this Agreement in accordance with its terms and (ii) the Closing (the “Interim Period”), except as may be required by Order of the Bankruptcy Court (provided that Sellers have not directly or indirectly petitioned, sought, requested or moved for such order of the ClosingBankruptcy Court or authorized, supported or directed any other Person to petition, seek, request or move for such Order of the Company shallBankruptcy Court), and Sellers shall cause each of its Subsidiaries to, carry on the Business in the ordinary course Ordinary Course of business andBusiness, including with respect to any measures taken in connection with the COVID-19 pandemic, except to the extent consistent therewith, use all commercially reasonable efforts to preserve otherwise agreed in writing by the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed ContractsBuyer,. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of Notwithstanding the first sentence of this Section 7.16.1, during the period from the date of this Agreement through the Closing Date, the Company Interim Period Sellers shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminateenter into, modify, amend, modify terminate, waive any material rights or supplement obligations under or otherwise seek to reject any Material Contract or any other Contract that would be material to the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsBusiness; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign assign, or otherwise dispose of any of the Acquired AssetsAssets or permit the Company to purchase any assets outside of the Ordinary Course of Business; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or ) on the Acquired Assets and/or any of the Acquired Assets, other than as would not result in assets of the Company or any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closingpart thereof; (d) incur institute, settle, compromise or permit agree to be incurred settle any Liability (i) material Proceeding (other than Accounts Payable any contested matter or proceeding in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent related to the ClosingChapter 11 Cases) before any Governmental Entity relating to the Company or (ii) any pending or threatened Claim that could give rise to Liabilities or could impose any binding obligation, whether contingent or realized, on the Company; (e) fail to replenish the Inventory and Supplies take any action outside of the Business in the ordinary course Ordinary Course of businessBusiness; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than license Intellectual Property Rights except for licenses in the ordinary course Ordinary Course of business consistent with past practiceBusiness; (g) make or rescind enter into any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methodsContract providing for capital expenditures with respect to the Business in an amount to be paid after the Closing of more than $10,000, policies or practicesindividually, or settle any Tax Liability$50,000, except in each case as would not reasonably be expected to affect the Buyeraggregate; (h) instituteauthorize, settle or commit, agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of the foregoing. Nothing contained in this Agreement is intended to give Buyer or its Affiliates, directly or indirectly, the right to control or direct the business of Sellers prior to the Closing.

Conduct of Business Pending the Closing. (a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the ClosingInterim Period, the Company shall, and WST Seller shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact perform or provide, or cause to be performed or provided, all necessary work and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings services required in connection with the Businessdevelopment (which for the avoidance of doubt includes permitting), provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Dateconstruction, the Company shall endeavor to maintain the Net Receivables Amountfinancing, the Inventory Value energization and each component of Inventory at or in excess testing of the amounts set forth on Schedule 7.1Project. Without limiting the generality of the first sentence of All such work and services performed by WST Seller shall be performed in accordance with Article I and otherwise in accordance with this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts;Agreement. (b) other than sales of Inventory During the Interim Period, WST Seller shall use commercially reasonable efforts to (i) ensure that any warranties with respect to the Project are enforced to the fullest extent necessary to maintain the Project in accordance with Prudent Utility Practice and (ii) own and operate the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets;Project in accordance with Prudent Utility Practice. (c) mortgageDuring the Interim Period, pledge XXXX Seller shall act at all times in accordance with all applicable Laws and Permits and the terms and conditions of the Master Lease Agreement. (d) During the Interim Period, except (w) as set forth on Section 6.2 of Sellers’ Disclosure Letter, (x) as contemplated by this Agreement, (y) as required by applicable Law, Permit or subject Assigned Contract or (z) as consented to in writing by Buyer, neither Seller shall: (i) liquidate, dissolve, reorganize or otherwise wind up its business or operations; (ii) grant, impose or permit to exist any Liens on any Project Asset (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (diii) incur or permit to be incurred enter into any Liability (other than Accounts Payable or in connection Additional Assigned Contract, except for any EPC Contract, any Pre-Approved Real Property Agreement and Additional Assigned Contracts entered into with the performance consent of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the ClosingBuyer in accordance with Section 6.2(f); (eiv) fail to replenish amend, waive any material term of or terminate any Assigned Contract, or Additional Assigned Contract, in each case, except for: (1) amendments and change orders that do not amend or modify (A) the Inventory Specifications in any material respect (or, if they do amend or modify the Specification in any material respect, unless the Independent Engineer has confirmed that any such amendment or modification does not impair the operation and Supplies maintenance of the Business in Project relative to the ordinary course of businessSpecifications), (B) any warranty rights or obligations under the applicable agreement or (C) any other material rights or obligations under the applicable agreement that survive the Closing Date; (f2) increase the salary of any Identified Employee at ministerial or after the time such person becomes an Identified Employeeimmaterial amendments or waivers, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as case, that would not reasonably be expected to affect have an adverse impact on Buyer or its rights thereunder following the Buyer;Closing; and (h3) instituteamendments expressly required by the terms thereof as of the Execution Date or, settle or agree to settle any litigationin the case of Additional Assigned Contracts, action or Proceeding before any court or Governmental Entity relating to as of the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Propertydate of execution; or (jv) enter into any Contract agree or commit to do any of the foregoing. (e) With respect to any Transferred Permits for which the date for renewal is reasonably expected to occur prior to the Closing Date, the applicable Seller shall file by the Closing Date all Permit Applications necessary to renew such Transferred Permits in a timely fashion without any material modifications to the terms of such Permits, except as may be required by applicable Law. (f) Except for any EPC Contract, any Pre-Approved Real Property Agreement and the telecom and electric station service agreements as set forth in Items 1.a. and 1.b. on Section 6.2 of Sellers’ Disclosure Letter as of the Execution Date, neither Seller shall enter into any Contract that would constitute an Assigned Contract and that (i) would result in a material change to the Project Assets or Assumed Liabilities expected to be transferred and assumed by Buyer, in a manner that is adverse to Buyer, measured against (1) the definition of the Project in the Recitals, (2) the Project Scope and Specifications set forth in Annex 2, and (3) the Project Site as set forth in Annex 3, including any change that would reasonably be expected to result in the failure of Sellers to acquire indefeasible and perpetual rights to a contiguous route for the transmission line portion of the Project (a material change adverse to Buyer being deemed to have occurred if entering into such Contract is intended to or would result in a change to the route for the transmission line set forth on Annex 3 (other than immaterial changes to the route) not previously approved in writing by Buyer); or (ii) includes material continuing liabilities or obligations after Closing that Buyer will be obligated to assume (and which liabilities or obligations would not reasonably be expected to be recoverable through the incremental rates approved, or expected to be approved, in the FERC 205 Approval) (each such Contract, an “Additional Assigned Contract”) without the prior written consent of Buyer (not to be unreasonably withheld, conditioned or delayed). Within five (5) Business Days following the Execution Date, Buyer shall designate to the Sellers in writing two (2) of its Representatives as the point of contact for any such requests relating solely to entering into any Contract involving Real Property, which Representatives may be replaced by Buyer from time to time by written notice to Sellers (such designated Representatives and any replacements, the “Designated Representatives”). Notwithstanding anything to the contrary in Section 11.1, e-mail consent from any Designated Representative of Buyer relating solely to entering into any Contract involving Real Property shall suffice to satisfy the requirement hereunder that consent to entering into such Contracts involving Real Property be given in writing and each Party shall be entitled to rely on such e-mail consent for all purposes of this Section 6.2(f). (g) Notwithstanding anything to the contrary in this Section 6.2, either Seller shall be permitted to take such actions as it reasonably deems necessary to prevent the occurrence of, or mitigate the effects of, damage to property or injury to persons under emergency circumstances; provided that such Seller shall provide Buyer with notice of such action as soon as reasonably practicable. (h) During the Interim Period, each Party shall promptly (but in any event within five (5) Business Days) notify the other Party of any Claim from any Person (including any Governmental Entity) against such Party or affecting any of its respective assets, in each case, that has resulted or would reasonably be expected to result in the failure of any conditions set forth in Article VII to be satisfied. (i) In the event that any eminent domain proceedings, condemnation proceedings or similar proceedings are reasonably expected to be commenced with respect to any property that may become a part of the Real Property, the Project or the Project Site, WST Seller and XXXX Seller shall, as soon as commercially practicable, confer in good faith with Buyer regarding the handling of such proceedings and their effects prior to implementing such proceedings; provided, however, for the avoidance of doubt, Buyer shall not have any approval right over XXXX Seller’s decision to exercise its eminent domain, condemnation or similar powers with respect to any such property or the handling of such proceedings by either Seller.

Conduct of Business Pending the Closing. During After the period from the date execution and delivery of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of except as otherwise permitted by this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without as provided by the prior written consent of the Buyer: (a) abandon any rights under any of The Business will be conducted and the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than Subject Assets operated only in the ordinary course of business consistent with past practice;current practices, which shall include, without limitation, operating in compliance with all applicable laws, regulations and administrative orders of Governmental Authorities, the maintenance in force of all insurance policies currently in force and effect and the maintenance of the Subject Assets in merchantable and saleable and operating condition and repair. (b) Subject to Section 6.2 (f), the Seller shall use reasonable efforts to maintain the goodwill of the customers, suppliers, manufacturers, licensors and others having business relationships with the Seller in connection with the Brands. (c) Subject to Section 6.2(f), the Seller will not enter into any contract or commitment affecting the Subject Assets or the Assumed Liabilities, or amend terminate or violate the terms of any such contract or commitment (or waive any right thereunder) without the prior written consent of the Buyer in each instance. (d) The Seller will not create, assume or suffer to exist any Liens on the Subject Assets (other than a Lien satisfied at or prior to the Closing), except with the prior written consent of the Buyer. (e) The Seller will conduct the affairs of the Business in such a manner so that the representations and warranties contained in Article IV shall continue to be true and correct on and as of the Closing Date as if made on and as of the Closing Date. (f) The Seller shall not lease, sell, transfer or otherwise dispose of any of the Subject Assets other than sales of Inventory and collection of Receivables in the ordinary course of business or with the consent of the Buyer; provided that any sale of fragrance products to competitors of the Buyer shall require the written consent of the Buyer, which consent shall not be unreasonably withheld. (g) make The Seller shall not commit, orally or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methodsin writing, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of the foregoing.

Conduct of Business Pending the Closing. (a) During the period from the date of Interim Period, except (i) as required or otherwise expressly contemplated this Agreement and continuing until the earlier Agreement, (ii) as set forth in Section 6.02(a) of the termination Seller Disclosure Schedule, (iii) as required under applicable Law, (iv) as required to prevent or mitigate an imminent threat or danger to life or property due to an emergency (but the Seller shall provide notice of this Agreement in accordance such emergency to the Purchaser as soon as reasonably practicable upon the occurrence of such emergency) or (v) with its terms the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or the Closingdelayed), the Company shall, and Seller shall cause each of its Subsidiaries to, carry on the Business Acquired Company to (A) operate the Facility in the ordinary course of business andin accordance with Good Industry Practices and in compliance in all material respects with all applicable Laws, to the extent consistent therewith, material Permits and material Contracts (other than Affiliate Obligations) and (B) use all its commercially reasonable efforts to preserve (1) preserve, maintain and protect the Business intact assets and preserve properties of the goodwill of Acquired Company, (2) maintain its material Permits and material Contracts (other than any Affiliate Obligations) and (3) maintain all material relationships with customers, suppliers and Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. . (b) Without limiting the generality of the first sentence of this Section 7.1foregoing, during the period from Interim Period, except (1) as required or otherwise expressly contemplated by this Agreement, (2) as set forth in Section 6.02(b) of the date Seller Disclosure Schedule, (3) as required under applicable Law, (4) as required to prevent or mitigate an imminent threat or danger to life or property due to an emergency (but the Seller shall provide notice of this Agreement through such emergency to the Closing Date, Purchaser as soon as reasonably practicable upon the Company shall not, and shall not permit any occurrence of its Subsidiaries to, without such emergency) or (5) with the prior written consent of Buyerthe Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), the Seller shall cause the Acquired Company to not: (ai) abandon sell, transfer, convey, abandon, cancel or otherwise dispose of any rights under any material assets, other than (A) sales, transfers, conveyances, abandonments, cancelations or other dispositions of obsolete fixtures, equipment and tangible personal property no longer used or useful in the business of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory Acquired Company in the ordinary course of business or (B) distributions by the disposition Acquired Company to the Seller of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assetscash and accounts receivable pursuant to Section 6.16(b); (cii) mortgageacquire any asset or property or make or commit to make capital expenditures, in each case, in excess of $250,000 individually or $500,000 in the aggregate; (iii) merge or consolidate with any other Person or acquire all or substantially all of the assets of, or equity interest in, any other Person; (iv) except for the termination of any Affiliate Obligation effective as of the Closing pursuant to Section 6.02(c), enter into, terminate, materially amend, grant any waiver of any material term under, grant any material consent with respect to, or fail to comply in any material respect with, any Material Contract (or any Contract that would be a Material Contract if in existence on the date hereof); (v) enter into or modify, terminate, cancel, renew or assign any material Permit, other than any material Permit that will expire prior to the Closing by its terms or the renewal of any material Permit in a timely fashion without material modifications to the terms of such material Permit, except as may be required by applicable Law; (vi) issue, reserve for issuance, pledge or subject to Liens (other than Permitted Liens)otherwise encumber, any property, business redeem or sell any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closingits respective equity interests; (dvii) incur liquidate, dissolve or permit otherwise wind up its business or operations or fail to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closingmaintain its limited liability company existence; (eviii) fail to replenish the Inventory and Supplies purchase any equity securities of the Business any Person; (ix) amend or modify its Organizational Documents; (x) effect any recapitalization, reclassification or other change in the ordinary course its capitalization; (xi) engage in any new line of business; (fxii) increase the salary create, incur or assume any Indebtedness or issue debt securities, or grant or permit to exist any Lien on any of any Identified Employee at its assets or after the time such person becomes an Identified Employee, properties (other than any Permitted Lien); (xiii) settle any Claim or compromise or settle any Liability, unless (A) the amount of such settlement or compromise involves solely the payment of money in an amount not to exceed $250,000, individually, or $500,000, in the aggregate, for all such amounts under this Section 6.02(b)(xiii), (B) the payment of such amount, to the extent not paid prior to the Closing, is reflected in the calculation of the Net Working Capital of the Acquired Company as of the Closing Date, (C) such settlement or compromise includes a full release of the Acquired Company from all Liabilities, and (D) such settlement or compromise would not impose any restrictions on the conduct of the business of the Acquired Company or require any admission of guilt by the Acquired Company; (xiv) cancel or materially change coverage under any Insurance Policy; (xv) except in the ordinary course of business consistent with past practice and current market practice, grant any increase in the compensation or severance pay to any Person who will be a Continuing Employee, except, in the case of a material increase in severance pay, if the Seller or any of its Affiliates (other than the Acquired Company after the Closing) will be solely responsible therefor, or adopt, enter into or materially amend any Seller Benefit Plan in respect of any Person who will be a Continuing Employee; (gxvi) make any change in its Tax accounting or rescind Tax reporting principles, methods or policies, make any material Tax new, or change any existing, election or take any material Tax position (unless required by law) or file with respect to Taxes, amend any Tax Return or change its fiscal year or financial or Tax accounting methodsReturn, policies or practices, or settle any Tax Liabilityliability, except enter into any Contract with respect to Taxes, enter into any settlement or closing agreement with respect to Taxes with any Taxing Authority, in each case as would not case, to the extent such change, election, settlement, Contract or agreement could reasonably be expected to affect the Buyergive rise to a material adverse consequence to an Indemnified Purchaser Entity; (hxvii) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to cause the Acquired Assets, or modify in any manner that is adverse Company to the Business or the Acquired Assets, rescind or terminate cease to be treated as a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assetsdisregarded entity for federal income tax purposes; (ixviii) transfer make any changes in financial accounting methods, principles or grant practices (or change an annual accounting period), except insofar as may be required by a change in GAAP or applicable Law; (xix) hire any rights under, modify employees; (xx) establish any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Propertybank accounts; or (jxxi) enter into any Contract agree or commit to do any of the foregoing. (c) Prior to the Closing, the Seller shall cause (i) all Liabilities of the Acquired Company under each Affiliate Obligation to be terminated, any amount owed as a result of such termination to be discharged, and the Acquired Company to have no further Liabilities thereunder and (ii) all Liabilities of the Acquired Company to the Seller Parties and their Affiliates to be terminated and discharged, in each case, to be effective as of the Closing. In the event that, after the Closing, the Acquired Company has any Liabilities under any Affiliate Obligation, upon the written request of the Purchaser, the Seller shall promptly cause all such Liabilities to be terminated and discharged, and the Acquired Company shall have no Liabilities as a result of such termination or otherwise, irrespective of when such Liabilities arose. Notwithstanding the foregoing, this Section 6.02(c) shall not apply to any Contract entered into after the Closing or, if specified by the Purchaser prior to Closing, any Contract entered into prior to the Closing as expressly contemplated by this Agreement, in either case, between the Acquired Company, on the one hand, and any Seller Party or any of its Affiliates, on the other hand. (d) Nothing contained in this Section 6.02 is intended to give the Purchaser the right to control or direct the operations of the Acquired Company prior to the Closing. Prior to the Closing, the Seller and the Acquired Company shall exercise complete control and supervision over the Acquired Company’s operations subject to the limitations in this Section 6.02.

Conduct of Business Pending the Closing. During the period from (a) Between the date of this Agreement and continuing until the earlier Effective Time, except as set forth in Section 5.1(a) of the termination Company Disclosure Letter, as contemplated by any other provision of this Agreement Agreement, or as required by applicable Law, by a Governmental Entity of competent jurisdiction or by the rules or requirements of the New York Stock Exchange, unless Acquiror shall otherwise agree in accordance with its terms writing (which agreement shall not be unreasonably withheld, delayed or the Closingconditioned), the Company shall, shall and shall cause each of Company Subsidiary to: (a) conduct its Subsidiaries to, carry on the Business operations only in the ordinary course of business andbusiness, (b) comply in all material respects with all Laws, orders and permits applicable to the extent consistent therewiththem, and (c) use all commercially reasonable efforts to preserve the Business substantially intact its business organization and preserve the goodwill of and maintain satisfactory relationships with third parties and Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others Entities having significant business dealings with it and to keep available the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date services of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value its key officers and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1employees. Without limiting the generality foregoing, except as set forth in Section 5.1(a) of the first sentence of this Section 7.1Company Disclosure Letter, during the period from the date as contemplated by any other provision of this Agreement through or as required by applicable Law, by a Governmental Entity of competent jurisdiction or by the Closing Daterules and requirements of the New York Stock Exchange, the Company shall not, and shall not permit any of its Subsidiaries Company Subsidiary to, between the date of this Agreement and the Effective Time, do any of the following without the prior written consent of Buyer:Acquiror (which consent shall not be unreasonably withheld, delayed or conditioned): (ai) abandon any rights under any amend its articles of the Assumed Contracts; terminateincorporation, amend, modify regulations or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contractsequivalent organizational documents; (bii) issue or authorize the issuance, pledge, transfer, subject to any Lien, sell or otherwise encumber or dispose of, any Equity Interests in the Company or any Company Subsidiary, or securities convertible into, or exchangeable or exercisable for, any such Equity Interests, or any rights of any kind to acquire any such Equity Interests or such convertible or exchangeable securities, other than sales (A) the issuance of Inventory in Shares upon the ordinary course exercise of Company Options outstanding on the date of this Agreement, and the vesting or settlement of Other Equity-Based Awards outstanding or as of the close of business on the date of this Agreement, in accordance with their terms, and (B) the issuance of Equity Interests in a wholly-owned Company Subsidiary to the Company or the disposition of obsolete equipmentanother Company Subsidiary; (iii) sell, pledge, dispose of, transfer, lease, license, surrender, relinquish, sell, transfer, convey, assign license or otherwise dispose encumber any material property or assets of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business the Company or any Company Subsidiary, except pursuant to existing Company Scheduled Contracts and except for: (x) dispositions of the Acquired Assetsobsolete equipment or assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employeeeach case, other than in the ordinary course of business consistent with past practice, or (y) dispositions in amounts not to exceed $10,000,000 individually or $15,000,000 in the aggregate; (giv) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than (A) regular quarterly cash dividends paid by the Company at the times and in the manner paid in the past by the Company and in an amount per share of Company Common Stock not more than $0.05 for quarterly dividends paid for periods commencing prior to August 31, 2012, and not more than $0.055 for quarterly dividends paid for periods commencing after that date, (B) dividends paid by a Company Subsidiary to its owners on a pro rata basis or (C) dividend equivalent rights on Other Equity-Based Awards payable by the Company pursuant to the Company Equity Plans), enter into any agreement with respect to the voting or registration of its Equity Interests or reduce its authorized capital; (v) other than (A) in the case of wholly-owned Company Subsidiaries, or (B) in the case of cashless exercises of Company Options, or Tax withholdings on the vesting or payment of Restricted Shares and Other Equity-Based Awards, reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its Equity Interests; (vi) merge or consolidate the Company or any Company Subsidiary with any Person (other than the merger of a wholly-owned Company Subsidiary into the Company or another wholly-owned Subsidiary) or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the liquidation or dissolution of a wholly-owned Company Subsidiary into the Company or another wholly-owned Company Subsidiary); (vii) acquire (including by merger, consolidation or acquisition of stock or assets) any interest in any Person or any assets, other than acquisitions of assets in the ordinary course of business; (viii) incur any Indebtedness for borrowed money or issue any debt securities, or assume or guarantee the obligations of any Person (other than a wholly-owned Company Subsidiary) for borrowed money, except: (A) in connection with refinancings of existing Indebtedness for borrowed money as such Indebtedness matures upon market terms and conditions, so long as the amount of Indebtedness following such refinancing shall not exceed the amount of Indebtedness immediately prior to the refinancing, or (B) for borrowings in the ordinary course of business pursuant to credit facilities existing as of the date of this Agreement; (ix) make any loans, advances or capital contributions to, or investments in, any other Person (other than any wholly-owned Company Subsidiary) other than as set forth in the Company’s Capital Expenditures Budget; (x) except to the extent required by Law (including to avoid the imposition of penalty taxes under Section 409A of the Code) or the existing terms of any Company Benefit Plan: (A) other than in the ordinary course after September 30, 2012 (in an amount not to exceed 3.5% on the average), increase the compensation or benefits payable or to become payable to its directors, officers or employees; (B) grant any rights to severance or termination pay to, or enter into or amend any employment or severance agreement with, any director, executive officer or employee of the Company or any Company Subsidiary, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, employment, termination, severance or other plan or agreement for the benefit of any director, executive officer or employee; or (C) other than in connection with the consummation of the Merger, take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; (xi) (A) make or rescind change any material Tax election election, (B) settle or take compromise any material Tax position liability for Taxes, or (unless required by lawC) or file any material amendment to Tax Return or change its fiscal year or financial or Tax accounting methodsReturns, policies or practices, or settle any Tax Liability, except in each case in a manner which is: (x) not in the ordinary course of business, (y) inconsistent with the past practices of any of the Company or any Company Subsidiary, as would not reasonably be expected applicable, with respect to affect the Buyertreatment of items on such Tax Returns, or (z) inconsistent with any amount reflected on the Company Financial Statements pursuant to FIN 48 (FASB 740-10); (hxii) make any material change in accounting policies or procedures, other than as required by GAAP; (xiii) make or commit to make any capital expenditures, that in the aggregate exceed the Company’s Capital Expenditures Budget; provided, however, that notwithstanding the foregoing, the Company and any Company Subsidiary shall be permitted to make emergency capital expenditures in any amount (A) required by a Governmental Entity or (B) that the Company reasonably determines is required in connection with the repair or replacement of facilities destroyed or damaged due to casualty or accident or natural disaster or other force majeure event; (xiv) enter into, terminate early, amend or modify in any material respect a Company Scheduled Contract, other than in the ordinary course of business; (xv) institute, settle settle, or agree to settle any litigation, action investigation, proceeding, or Proceeding other claim pending or threatened before any arbitrator, court or other Governmental Entity in any manner involving the payment of an amount in excess of $1,000,000 individually or $5,000,000 in the aggregate; (xvi) except for transactions between (A) the Company and wholly-owned Company Subsidiaries or (B) among wholly-owned Company Subsidiaries, redeem, repurchase, defease, cancel or otherwise acquire any Indebtedness, other than (w) at or within 120 days of stated maturity, (x) pursuant to any required amortization payments and mandatory prepayments or (y) in connection with refinancings permitted by clause (viii) above; (xvii) enter into or initiate any Tax planning or structuring project relating to the Acquired Assets, Company or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual PropertyCompany Subsidiary; or (jxviii) authorize or enter into any Contract to do any of the foregoing. Acquiror will, promptly following the date hereof, designate two individuals from either of whom the Company may seek approval to undertake any actions not permitted to be taken under this Section 5.1(a), and will ensure that such persons will respond, on behalf of Acquiror, to the Company’s requests in an expeditious manner but in any event no later than two Business Days after the Company’s request.

Conduct of Business Pending the Closing. During 5.1 Conduct of Business by the period from Company Pending the Closing. AVS and the Company covenant and agree that, between the date of this Agreement and continuing until the earlier Closing Date, the business of the termination of this Agreement in accordance with its terms or Company shall be conducted only in, and the ClosingCompany shall not take any action except in, the Ordinary Course of Business. The Company shall, and AVS shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, during such period use all commercially reasonable efforts to preserve intact the Business intact Company's business organization, to keep available the services of its current officers, employees and consultants, and to preserve the goodwill of and its present relationships with Governmental Entities, customers, supplierssuppliers and other Persons with which it has significant business relations. By way of amplification and not limitation, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing Company shall not prevent Sellers from rejecting Contracts that are (and AVS shall not Assumed Contracts. During permit the period from Company to), between the date of this Agreement through and the Closing Date, the Company shall endeavor except as set forth in Schedule 5.1(a), directly or indirectly, do or propose or agree to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess do any of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, following without the prior written consent of BuyerKellstrom: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify amend or supplement the terms of any Assumed Contract; otherwise change its Certixxxxxx xx Incorporation or fail to honor Bylaws or perform, the Assumed Contractsequivalent organizational documents; (b) other than sell, pledge, dispose of, encumber, exchange or lease, or authorize the sale, pledge, disposition, exchange or lease of, or grant of an encumbrance on, any of its assets (including, without limitation, the Purchased Assets), tangible or intangible, except sales of Inventory inventory in the ordinary course Ordinary Course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired AssetsBusiness; (c) mortgageacquire (including, pledge without limitation, for cash or subject to Liens (other than Permitted Liens)shares of stock, by merger, consolidation, or acquisition of stock or assets) any property, business or any of the Acquired Assets, other than as would not result interest in any Liability that would be corporation, partnership or would increase an Assumed Liability as other business organization or division thereof, or make any investment either by purchase of stock or subsequent to the Closingsecurities, contributions of capital or property transfer, or purchase any property or assets of any other Person; (d) incur or permit to be incurred any Liability (indebtedness other than Accounts Payable trade payables and accrued expenses in the Ordinary Course of Business or issue any debt securities or assume, guarantee or endorse or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances other than advances to employees not exceeding Twenty Thousand Dollars ($20,000) in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closingaggregate; (e) fail to replenish the Inventory and Supplies extent not prohibited by any other provision of the Business this Section 5.1, enter into any Contract other than in the ordinary course Ordinary Course of businessBusiness providing for a term of not more than six months and payments not exceeding Fifty Thousand Dollars ($50,000) in the aggregate over the term of such Contract; (f) increase make capital expenditures exceeding One Hundred Thousand Dollars ($100,000) in excess of those reflected on the salary Base Balance Sheet; (g) purchase any inventory having a purchase price in excess of Twenty Thousand Dollars ($20,000) per item and One Hundred Thousand Dollars ($100,000) in the aggregate, other than for purchases of inventory for sale to an Identified Customer; (h) engage in any Affiliated Transactions in excess of Five Thousand Dollars ($5,000) per transaction and Ten Thousand Dollars ($10,000) in the aggregate, other than purchases of inventory for sale to an Identified Customer, transactions that will not result in any change in or affect the Purchased Assets and/or Assumed Liabilities and transfers of cash among AVS and any of its Affiliates; (i) enter into any Contract providing for the lease or exchange of any Identified Employee at or after the time such person becomes an Identified Employeeassets, including, without limitation, any inventory, other than in the ordinary course Ordinary Course of business consistent with past practiceBusiness; (gj) make increase the compensation payable or rescind any material Tax election to become payable to its officers or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, employees except in each case as would not reasonably be expected to affect the BuyerOrdinary Course of Business; (hk) instituteexcept as presently bound to do, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights underseverance or termination pay to, or enter into any settlement regarding the breach employment or infringement ofseverance agreement with, any of its directors, officers or other employees; (l) establish, adopt, enter into or amend or take any action to accelerate any rights or benefits which any collective bargaining, bonus, profit sharing, trust, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees; (m) in any way modify or amend any accounting policies or procedures used in the preparation of the Base Balance Sheet; (n) pay, discharge or satisfy any existing claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the Ordinary Course of Business of due and payable liabilities reflected or reserved against in its financial statements, as appropriate, or liabilities incurred after the date hereof in the Ordinary Course of Business; (o) materially increase or decrease prices charged to its customers, or take any other action which might reasonably be expected to result in any material Intellectual Propertyincrease in the loss of customers through non-renewal or termination of contracts or other causes; or (jp) enter into any Contract agree, in writing or otherwise, to do take or authorize any of the foregoingforegoing actions. In the event that the Company shall desire to take any action covered by subparagraph (g) above, the Company shall request the consent of Kellstrom on any Business Day by speaking with Zivi Nedivi, Fred Von Xxxxx xxx Oscar Torres (or any one of them that the Company xxx xxxxx) xx persox xx xx xxxxphone at the telephone numbers set forth in Schedule 5.1(b) and simultaneously confirming such request by e-mail to each such person at the e-mail addresses set forth on Schedule 5.1(b). In the event that none of the foregoing representatives of Kellstrom respond to a request made pursuant to such procedures by 11:00 x.x. of the next Business Day, Kellstrom shall be deemed to have granted its consent to such request. Xx xxx event that Kellstrom shall respond to any such request (either approving or disaxxxxxxxx of a proposed transaction), it shall confirm its response by return e-mail to the sender of the e-mail request and if such response shall be a disapproval, it shall include a reason therefor.

Conduct of Business Pending the Closing. During (a) Arcade will, solely with respect to the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or Businses, prior to the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to : (i) preserve the Business intact and Acquired Assets intact, retain its permits, licenses and franchises, preserve the existing contracts and goodwill of and relationships with Governmental Entities, its customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees personnel and others having business dealings relations with it; (ii) conduct the Business only in the Ordinary Course of Business; (iii) have in effect and maintain at all times all insurance of the kinds, in the amounts and with the Businessinsurers as is presently in effect or equivalent insurance; (iv) maintain its books, provided that accounts and records with respect to the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During Business and Acquired Assets in its usual, regular and ordinary manner; (v) pay and discharge when due (including extensions) all Taxes, assessments and governmental charges imposed upon it with respect to the period from Acquired Assets and the date of this Agreement through the Closing Date, the Company shall endeavor Business (other than those contested in good faith by appropriate proceedings and with respect to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or which adequate reserves have been made in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: accordance with GAAP); (avi) abandon any rights under any of the Assumed comply in all material respects with all material Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts;and (vii) pay all trade payables (other than those contested in good faith by appropriate proceedings) consistent with past practice. (b) other than sales Arcade will not, solely with respect to the Business and the Acquired Assets, prior to the Closing, without Buyer’s prior written consent do any of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise following: (i) dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in Assets or acquire any Liability that would be material assets or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employeeproperties, other than in the Ordinary Course of the Business consistent with past practice and other than capital expenditures as described to Buyer in writing prior to the date hereof, if any; (ii) subject any of the Acquired Assets or the Leased Real Property to any Lien other than Permitted Liens, or, except in the Ordinary Course of the Business, incur any indebtedness for borrowed money, make any loans or advances, assume, guarantee or endorse or otherwise become responsible for the obligation of any other person or entity; (iii) except in the Ordinary Course of Business, materially or adversely modify, amend, cancel or terminate any material Contract, including the making of any prepayment on any existing obligation; (iv) make any change in any Seller Benefit Plan or enter into any arrangement that would constitute an Employee Plan or in the compensation paid or payable to any officer, employee, agent, representative or consultant of the Business or pay or agree to pay any bonus or similar payment (other than ordinary course increases in compensation or renewals as determined by the management of Arcade, consistent with past practice or payments coming due); (v) enter into any Contract or agreement with respect to which it has any liability or obligation involving more than $50,000, contingent or otherwise, or which may otherwise have any continuing effect after the Closing, other than in the Ordinary Course of Business consistent with past practice, or which may place any material limitation on the method of conducting or scope of the Business; (vi) accept advance payments, or otherwise modify its accounting and business policies with respect thereto, other than in the Ordinary Course of Business consistent with past practice; (gvii) make do any other act which would impair or rescind prevent the consummation of the transactions contemplated or cause any representation or warranty to be or become false in any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Propertyrespect; or (jviii) enter into an agreement, contract, commitment or arrangement to do any Contract of the foregoing, or to authorize or announce an intention to do any of the foregoing.

Conduct of Business Pending the Closing. During the period from From the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the ClosingClosing Date, the Company Owner shall, and shall cause each of its Subsidiaries the Company to, carry on operate the Company Business in the ordinary course Ordinary Course of business andBusiness. Consistent with the foregoing, Owner shall cause the Company to keep and maintain the extent consistent therewith, assets of the Company in good operating condition and repair and to use all its commercially reasonable efforts consistent with good business practice to preserve maintain the Business business organization of the Company intact and to preserve the goodwill of and relationships with Governmental Entitiesthe suppliers, contractors, licensors, employees, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings relations with the BusinessCompany. Owner shall not, provided that the foregoing and shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, permit the Company shall endeavor to maintain the Net Receivables Amountto, the Inventory Value and each component of Inventory at take any action that would, or that reasonably would be expected to, result in excess any of the amounts conditions to Closing set forth on Schedule 7.1in ARTICLE VII not being satisfied. Without limiting the generality of the first sentence of this Section 7.1foregoing, during except as set forth on Schedule 5.2 or to the period from extent Purchaser otherwise Consents in writing, prior to the date of this Agreement through the Closing DateClosing, the Company Owner shall not, and shall cause the Company not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any amend the Organizational Documents of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsCompany; (b) (i) issue or sell any Equity Interests of the Company except under the Contribution Agreement and pursuant to the Pre-Closing Restructuring, (ii) grant any options, warrants, calls, or other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign rights to purchase or otherwise dispose acquire any Equity Interests of the Company, or (iii) split, combine, reclassify, cancel, redeem, or repurchase any Acquired AssetsEquity Interests of the Company; (c) mortgagesell, pledge lease, transfer, or subject to Liens otherwise dispose of, or incur any Lien (other than a Permitted Liens)Lien) on, any property, business material properties or any assets of the Acquired AssetsCompany, or used, held for use or useful in the operation of the Company Business, other than as would not result non-exclusive licenses of Business Intellectual Property in any Liability that would be or would increase an Assumed Liability as the Ordinary Course of or subsequent to the ClosingBusiness; (d) incur or permit to be incurred excluding Equipment and Truck Indebtedness, make any Liability capital expenditures in an aggregate amount of more than Fifty Thousand Dollars (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing$50,000); (e) fail to replenish the Inventory excluding Equipment and Supplies Truck Indebtedness, create, incur, guarantee, or assume Company Indebtedness in an aggregate amount of the Business in the ordinary course of businessmore than Fifty Thousand Dollars ($50,000); (f) increase enter into any transaction between the salary Company, on the one hand, and Owner or any Affiliate of any Identified Employee at Owner, on the other hand, that (i) is not on an arm’s-length basis or (ii) would be binding on the Company or the Company Business after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practiceClosing; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methodsloans, policies or practicesadvances, or settle capital contributions to, or investments in, any Tax Liability, except in each case as would not reasonably be expected to affect the Buyerother Person (including any Affiliate); (h) instituteacquire any business, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired AssetsEquity Interests, or modify in assets of any manner that is adverse to the Business or the Acquired Assetsother Person (whether by merger, rescind or terminate a material Permitsale of Equity Interests, allowancesale of assets, or credit (or application therefor) relating to the Business or the Acquired Assetsotherwise); (i) transfer or grant create any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; orSubsidiary; (j) enter into any new line of business; (k) grant any increase in the base salary or wages, bonus opportunity, or other compensation or benefits payable to any Employee or consultant, in each case except (i) base salary or hourly wage increases for Employees or consultants with annual compensation of less than One Hundred Thousand Dollars ($100,000) in the Ordinary Course of Business, (ii) as required by Law, or (iii) as required by the terms of any existing Contract, Company Benefit Plan, or collective bargaining agreement set forth on Schedule 3.14(a) in effect as of the date hereof; (l) (i) adopt, enter into, amend or terminate any Company Benefit Plan, except immaterial amendments in the Ordinary Course of Business in connection with a renewal thereof, (ii) grant any equity or equity-based award, or (iii) take any action to accelerate the vesting or payment of, or otherwise fund or secure the payment of, any compensation or benefits under any Company Benefit Plan, in each case except (x) as required by Law, or (y) as required by the terms of any existing Contract, or Company Benefit Plan; (m) hire or engage any employee who would be an Employee or consultant with aggregate annual compensation in excess of One Hundred Thousand Dollars ($100,000), or terminate any Employee or consultant other than for cause, other than, in each case, to truck drivers to the extent that such aggregate annual compensation is consistent with prior packages given to other truck drivers by the Company; (n) except as contemplated by Section 5.11, (i) amend or modify in any material respect any Material Contract, Real Property Lease, Outbound IP License, or Inbound IP License, (ii) terminate, not renew, or extend any Material Contract, Real Property Lease, Outbound IP License, or Inbound IP License, or (iii) enter into a Contract that, if entered into prior to do the date hereof, would have been a Material Contract, Real Property Lease, Outbound IP License, or Inbound IP License, provided that this provision shall not prevent the Company from entering into or modifying any customer contract in the Ordinary Course of Business; (o) make any change in any accounting principle, policy, or procedure used by the Company or the Company Business (other than regarding Taxes, which shall be governed by paragraph (p) below), other than changes required by GAAP or applicable Law; (p) except in connection with the Pre-Closing Restructuring, make or change any material Tax election, change any annual Tax accounting period, file any amended Tax Return, enter into any agreement with respect to Taxes with any Governmental Authority (including a closing agreement under Section 7121 of the Code), settle any Tax claim or assessment, surrender any right to claim a refund for Taxes, consent to any extension or waiver of the limitation period applicable to any Taxes, make any voluntary Tax amnesty or similar filing or adopt or change any accounting principle, policy, or procedure used by the Company regarding Taxes; (q) accelerate or delay collection of any notes or Accounts Receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the Ordinary Course of Business; (r) delay or accelerate payment of any Accounts Payable or other Liability beyond or in advance of its due date or the date when such Liability would have been paid in the Ordinary Course of Business; (s) offer any rebates, discounts, commissions, incentives, or inducements for the purchase of products or services that are materially different from those rebates, discounts, commissions, incentives or inducements offered by the Company in the Ordinary Course of Business, or engage in any form of “channel stuffing” or other activity that could reasonably be expected to result in a reduction, temporary or otherwise, in the demand for the Company’s products and services following the Closing; (t) make any material change in the Company’s general pricing practices or policies or any change in the Company’s credit or allowance practices or policies other than as in the Ordinary Course of Business; (u) except for distributions to Owner in an amount not to exceed Three Hundred Sixty Two Thousand Dollars ($362,000) in the aggregate, declare, set aside, or pay any dividend or any other distribution with respect to the Purchased Membership Interests; (v) make any changes in its accounting systems, policies or practices; (w) (i) settle or commence any material Proceeding or (ii) cancel any other debts owed to or claims held by the Company other than, in the case of this sub-clause (ii), in the Ordinary Course of Business; (x) waive, abandon, or otherwise dispose of any rights in or to any material Business Intellectual Property, other than non-exclusive licenses of Business Intellectual Property in the Ordinary Course of Business; (y) adopt a complete or partial plan of liquidation, dissolution, restructuring, recapitalization, bankruptcy, suspension of payments, or other reorganization; or (z) agree to do, approve, or authorize any of the foregoing.

Conduct of Business Pending the Closing. During the period The Sellers covenant and agree, that from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company unless Buyer shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at otherwise agree or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of as otherwise contemplated by this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of BuyerAgreement: (a) abandon Sellers will, or will cause the Companies to, operate the Assets in all material respects in the same manner as presently being operated, and will refrain from entering into any rights under transaction or contract relating directly to any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) Assets other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (b) The Sellers will, or will cause the Companies to, use commercially reasonable efforts to perform its obligations under any contracts and agreements to which it is a party or to which the Assets are subject, except for such obligations as it in good faith may dispute and except for such failures to perform as would not in the aggregate have a Seller Material Adverse Effect; (c) Except as set forth on Schedule 5.2, the Sellers will not, and will not permit the Companies to, directly or indirectly, enter into any transaction with any of its Affiliates that will cause the Companies or the Assets to be subject to any liabilities or obligations subsequent to the Effective Time. (d) The Sellers will not permit the Companies to make any non-emergency capital expenditure that would cost $25,000 or more without the prior written approval of Buyer, which approval shall not be unreasonably withheld; (e) The Companies will not create, incur, guarantee, or assume any indebtedness: (f) increase The Companies will not mortgage or pledge any of the salary of Assets or create or suffer to exist any Identified Employee at or after the time such person becomes an Identified Employeeencumbrance thereupon, other than in the ordinary course of business consistent with past practicePermitted Encumbrances; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methodsExcept as set forth on Schedule 5.2, policies or practicesthe Sellers will not, and will not permit the Companies to, lease, transfer, or settle otherwise dispose of, directly or indirectly, any Tax Liability, except in each case as would not reasonably be expected to affect of the BuyerAssets; (h) instituteThe Sellers will not, settle and will not permit the Companies to, enter into any new firm, long-term contract pursuant to which the Companies become obligated to transport or agree to settle deliver any litigationproducts through or by means of the Assets at a price less than the maximum applicable FERC tariff, action or Proceeding before any court or Governmental Entity relating upon terms and conditions which are substantially different from the terms and conditions applicable to the Acquired Assets, or modify in any manner that is adverse transportation of products by the Companies pursuant to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired AssetsContracts; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding Insurance will be maintained by the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract Sellers for the Companies and the Assets in accordance with ordinary course established prior to do any the date of the foregoingthis Agreement.

Conduct of Business Pending the Closing. During the period from From the date of this Agreement and continuing until the earlier Closing Date, except with the written consent of the termination of this Agreement in accordance with its terms Purchaser (such consent not to be unreasonably withheld, conditioned or the Closingdelayed), the Company Seller shall, and shall cause each of its Subsidiaries the Company to, carry on operate the Business in the ordinary course Ordinary Course of Business. Consistent with the foregoing, Seller shall use reasonable best efforts to cause the Company to keep and maintain the assets of the Company in good operating condition and repair and to use its reasonable best efforts consistent with good business andpractice to maintain the business organization of the Company intact and to preserve the goodwill of the suppliers, contractors, licensors, employees, customers, distributors, and others having business relations with the Company; provided, however, that none of the following actions shall require the prior written consent of Purchaser: (i) payment of or accrual for Permitted Distributions; (ii) payment of the Change of Control Bonuses, or entry into or the modification of agreements with respect to the extent consistent therewithChange of Control Bonuses, provided, however, that no entry into or modifications of such agreements can be made that require payment after the Closing Date; (iii) payment of Transaction Expenses prior to the Closing as would otherwise be required pursuant to Section 1.6(d); and (iv) incurrence of any intercompany Indebtedness required to be eliminated on the Financial Statements in accordance with GAAP. Seller and the Company shall use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entitiesnot take any action that would, customersor that reasonably would be expected to, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or result in excess any of the amounts conditions to Closing set forth on Schedule 7.1in ARTICLE VII not being satisfied. Without limiting the generality of the first sentence of this Section 7.1foregoing, during except as set forth on Schedule 5.2 or to the period from extent Purchaser otherwise Consents in writing (such Consent not to be unreasonably withheld, conditioned or delayed), prior to the date of this Agreement through the Closing DateClosing, the Company Seller shall not, and shall cause the Company not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any amend the Organizational Documents of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsCompany; (b) (i) issue or sell any Equity Interests of the Company, (ii) grant any options, warrants, calls, or other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign rights to purchase or otherwise dispose acquire any Equity Interests of the Company, or (iii) split, combine, reclassify, cancel, redeem, or repurchase any Acquired AssetsEquity Interests of the Company; (c) mortgagesell, pledge lease, transfer, or subject to Liens otherwise dispose of, or incur any Lien (other than a Permitted Liens)Lien) on, any property, business properties or any assets of the Acquired AssetsCompany, or used, held for use or useful in the operation of the Business, other than as would not result in any Liability that would be or would increase an Assumed Liability as the Ordinary Course of or subsequent to the ClosingBusiness; (d) incur or permit to be incurred except for Equipment and Truck Indebtedness, make any Liability capital expenditures in an aggregate amount of more than Seventy-Five Thousand Dollars (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing$75,000); (e) fail to replenish the Inventory except for Equipment and Supplies Truck Indebtedness, create, incur, guarantee, or assume any Indebtedness in an aggregate amount of the Business in the ordinary course of businessmore than Seventy-Five Thousand Dollars ($75,000); (f) increase enter into any transaction between the salary Company, on the one hand, and Seller or any Affiliate of any Identified Employee at Seller, on the other hand, that (i) is not on an arm’s-length basis or (ii) would be binding on the Company or the Business after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practiceClosing; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methodsloans, policies or practicesadvances, or settle capital contributions to, or investments in, any Tax Liability, except in each case as would not reasonably be expected to affect the Buyerother Person (including any Affiliate); (h) instituteexcept for Equipment and Truck Indebtedness, settle or agree to settle acquire any litigationbusiness, action or Proceeding before any court or Governmental Entity relating to the Acquired AssetsEquity Interests, or modify in assets of any manner that is adverse to the Business or the Acquired Assetsother Person (whether by merger, rescind or terminate a material Permitsale of Equity Interests, allowancesale of assets, or credit (or application therefor) relating to otherwise), other than the Business or acquisition of Trucks and Equipment in the Acquired AssetsOrdinary Course of Business; (i) transfer or grant create any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; orSubsidiary; (j) enter into any new line of business; (k) grant any increase in the base salary or wages, bonus opportunity, or other compensation or benefits payable to any Employee or consultant, in each case except (i) base salary or hourly wage increases for Employees or consultants in the Ordinary Course of Business (and in each case, not to exceed five percent (5%) of such Employee’s or consultant’s current base salary or hourly wage), (ii) as required by Law, (iii) as required by the terms of any existing Contract, Company Benefit Plan, or collective bargaining agreement set forth on Schedule 3.14(a) in effect as of the date hereof, or (iv) with respect to the Change of Control Bonuses (which shall, for the avoidance of doubt, be deemed Transaction Expenses hereunder); (l) (i) adopt, enter into, amend or terminate any Company Benefit Plan, except immaterial amendments in the Ordinary Course of Business in connection with a renewal thereof, (ii) grant any equity or equity-based award, or (iii) take any action to accelerate the vesting or payment of, or otherwise fund or secure the payment of, any compensation or benefits under any Company Benefit Plan, in each case except (x) as required by Law, (y) as required by the terms of any existing Contract, or Company Benefit Plan, or (z) with respect to the Change of Control Bonuses (which shall, for the avoidance of doubt, be deemed Transaction Expenses hereunder); (m) hire or engage any employee who would be an Employee or consultant with aggregate annual compensation in excess of $75,000, or terminate any Employee with aggregate annual compensation in excess of $75,000 or consultant other than for cause; (n) amend or modify any collective bargaining agreement or other agreement with a labor union or works council; (o) (i) amend or modify in any material respect any Material Contract, Real Property Lease, Outbound IP License, or Inbound IP License, (ii) terminate, not renew, or extend any Material Contract, Real Property Lease, Outbound IP License, or Inbound IP License, or (iii) enter into a Contract that, if entered into prior to do the date hereof, would have been a Material Contract, Real Property Lease, Outbound IP License, or Inbound IP License, provided that this provision shall not prevent the Company from entering into or modifying any customer contract in the Ordinary Course of Business; (p) make any change in any accounting principle, policy, or procedure used by the Company or the Business (other than regarding Taxes, which shall be governed by paragraph (q) below), other than changes required by GAAP or applicable Law; (q) make or change any Tax election, change any annual Tax accounting period, file any amended Tax Return, enter into any agreement with respect to Taxes with any Governmental Authority (including a closing agreement under Section 7121 of the Code), settle any Tax claim or assessment, surrender any right to claim a refund for Taxes, consent to any extension or waiver of the limitation period applicable to any Taxes, make any voluntary Tax amnesty or similar filing or adopt or change any accounting principle, policy, or procedure used by the Company regarding Taxes; (r) accelerate or delay collection of any notes or Accounts Receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the Ordinary Course of Business; (s) delay or accelerate payment of any Accounts Payable or other Liability beyond or in advance of its due date or the date when such Liability would have been paid in the Ordinary Course of Business; (t) offer any rebates, discounts, commissions, incentives, or inducements for the purchase of products or services that are materially different from those rebates, discounts, commissions, incentives or inducements offered by the Company in the Ordinary Course of Business, or engage in any form of “channel stuffing” or other activity that could reasonably be expected to result in a reduction, temporary or otherwise, in the demand for the Company’s products and services following the Closing; (u) make any material change in the Company’s general pricing practices or policies or any change in the Company’s credit or allowance practices or policies other than in the Ordinary Course of Business; (v) declare, set aside, or pay any dividend or any other distribution with respect to the Shares, except for Permitted Distributions; (w) make any changes in its accounting systems, policies or practices; (x) (i) settle or commence any material Proceeding or (ii) cancel any other debts owed to or claims held by the Company other than, in the case of this sub-clause (ii), in the Ordinary Course of Business; (y) waive, abandon, or otherwise dispose of any rights in or to any Business Intellectual Property; (z) adopt a complete or partial plan of liquidation, dissolution, restructuring, recapitalization, bankruptcy, suspension of payments, or other reorganization; or (aa) agree to do, approve, or authorize any of the foregoing.

Conduct of Business Pending the Closing. During Until the period from Closing, Stereophile will preserve the date of Business organization intact and will use reasonable efforts to retain all present key employees. Except as otherwise permitted by this Agreement and continuing or as consented to by Valley in writing, until the earlier Closing: a. the Business will be conducted only in the ordinary course which, without limitation, shall include compliance with all applicable laws, regulations and administrative orders of any state or municipality the termination noncompliance with which could, individually or in the aggregate, have a material or adverse effect upon the Business, and the maintenance in force of this Agreement all insurance policies, fidelity bonds and performance bonds currently in force and effect; b. consistent with conducting the Business in accordance with good business judgment, Stereophile shall use its terms best efforts to keep available to the Business the goodwill of suppliers, advertisers, customers and others having business relations with the Business; c. Stereophile shall refrain from taking any action to dissuade any of the employees, agents, advertisers, customers, clients, representatives, distributors, creditors and suppliers of the Business from remaining associated with, or of inducing any of the foregoing persons to terminate an association with, NewCo or the ClosingBusiness; and d. except as otherwise provided in this Agreement, Stereophile shall not: (1) enter into any contract or commitment, incur any liability, absolute or contingent, waive any right or enter into any other transaction which would materially or adversely affect the Company shallPublication Assets or the Business; (2) commit to sell or lease or agree to sell or lease or otherwise dispose of any of the property included in the Publication Assets, and shall cause each except for sales of its Subsidiaries to, carry on the Business inventory or other tangible personal property in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill conduct of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer:; (a3) abandon any rights under mortgage or pledge any of the Assumed ContractsPublication Assets; terminateCONTRIBUTION AND SHAREHOLDERS AGREEMENT VALLEY RECORD DISTRIBUTORS, amendINC. -- STEREOPHILE, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts;INC. (b4) other than sales take or omit to take any action which, if taken or omitted prior to the date hereof, would constitute a breach of Inventory in the ordinary course Stereophile's representations or warranties or cause any of business them to be untrue or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets;misleading; and (c5) mortgage, pledge or subject make any commitments to Liens (other than Permitted Liens), any property, business or take any of the Acquired Assets, other than as would not result actions specified in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of the foregoingthis Section.

Conduct of Business Pending the Closing. During the period from the date of this Agreement and continuing until the earlier of (i) the termination of this Agreement in accordance with its terms and (ii) the Closing (the “Interim Period”), except as may be required by Order of the Bankruptcy Court (provided that Sellers have not directly or indirectly petitioned, sought, requested or moved for such order of the ClosingBankruptcy Court or authorized, supported or directed any other Person to petition, seek, request or move for such Order of the Company shallBankruptcy Court) and applicable Law (including Laws in connection with the COVID-19 pandemic), and Sellers shall cause each of its Subsidiaries to, carry on the Business in the ordinary course Ordinary Course of business andBusiness, except to the extent consistent therewithotherwise agreed in writing by the Buyer, and shall use all commercially reasonable efforts to preserve intact the Business intact Business, to keep available the services of the Employees, and preserve the to maintain their relations and goodwill of and relationships with Governmental Entitiestheir vendors, suppliers, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and any others having with whom or with which they have business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contractsrelationships. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of Notwithstanding the first sentence of this Section 7.16.1, during the period from the date of this Agreement through the Closing Date, the Company Interim Period Sellers shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (ai) abandon any rights under any other than in the Ordinary Course of the Assumed Contracts; terminateBusiness, enter into, modify, amend, modify terminate, reject, waive any material rights or supplement obligations under or otherwise seek to reject any Material Contract and Lease or take or omit to take any action that would result (with notice or lapse of time or both) in a default under any Material Contract or Lease or results in, or gives rise to a right with respect to, the terms termination of any Material Contract or Lease; or (ii) other than in the Ordinary Course of Business and as would not reasonably be expected to cause a Seller Material Adverse Effect, enter into, modify, amend, terminate, reject, waive any material rights or obligations under or otherwise seek to reject any Assumed Contract or take or omit to take any action that would result (with notice or lapse of time or both) in a default under any Assumed Contract or results in, or gives rise to a right with respect to, the termination of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign assign, lease, or otherwise dispose of any of the Acquired AssetsAssets or permit the Company to purchase any assets, in each case outside of the Ordinary Course of Business; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or ) on the Acquired Assets and/or any of the Acquired Assets, other than as would not result in assets of the Company or any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closingpart thereof; (d) incur amend, terminate, or permit to be incurred renew any Liability (Contract or Lease other than Accounts Payable or in connection with the performance Ordinary Course of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the ClosingBusiness; (e) fail enter into any agreement or commitment or engage in any transaction Relating to replenish the Inventory and Supplies of the Business which is not in the ordinary course Ordinary Course of businessBusiness; (f) increase the salary of institute, settle, compromise or agree to settle any Identified Employee at or after the time such person becomes an Identified Employee, (i) material Proceeding (other than any contested matter or proceeding in or related to the Chapter 11 Cases) before any Governmental Entity relating to the Company (ii) any pending or threatened Claim that could give rise to Liabilities or could impose any binding obligation, whether contingent or realized, on the Company; provided that Sellers, and Sellers’ insurance carriers, may settle, compromise or agree ]to settle any Proceeding, Claim, or matter covered by any insurance policy of Sellers, including, for the avoidance of doubt, any settlements, compromises or agreements to settle that fall within the deductive limits, without the consent of Buyer; or (iii) waive or release any claims or rights included in or related to the Acquired Assets with a value individually or in the ordinary course aggregate in excess of business consistent with past practice$50,000; (g) make or rescind engage any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practicesnew Employee other than in the Ordinary Course of Business, or settle terminate any Tax Liability, except Employee other than in each case as would not reasonably be expected to affect the BuyerOrdinary Course of Business or for cause; (h) instituteother than in the Ordinary Course of Business or as otherwise approved by the Bankruptcy Court, settle increase the benefits of or agree compensation payable to settle (whether in the form of salary, bonus, or otherwise) any litigationEmployee, action contractor or Proceeding before consultant of any court Seller, or Governmental Entity relating grant any bonus, benefit, payment (contingent or otherwise) or other direct or indirect compensation to any Employee, contractor or consultant of any Seller, including pursuant to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired AssetsIncentive Plan; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding license Intellectual Property Rights except for licenses in the breach or infringement of, any material Intellectual Property; orOrdinary Course of Business; (j) take any action or fail to take any action required by this Agreement with the knowledge that such action or omission would result in any of the representations and warranties of Sellers in this Agreement becoming untrue in any respect; (k) enter into any Contract providing for capital expenditures with respect to the Business in an amount to be paid after the Closing of more than $50,000, individually, or $100,000, in the aggregate; and/or (l) authorize, commit, agree to or enter into any Contract to do any of the foregoing. Nothing contained in this Agreement is intended to give Buyer or its Affiliates, directly or indirectly, the right to control or direct the business of Sellers prior to the Closing.

Conduct of Business Pending the Closing. During the period from (a) From the date of this Agreement and continuing hereof until the earlier of the termination of this Agreement in accordance with its terms or the Closing, except with the Company shallprior written consent of the Buyer or as otherwise expressly permitted or required by this Agreement, and the Sellers shall cause each of its Subsidiaries the Mandara Entities to, : (i) carry on its business in substantially the Business same manner as it has heretofore and not introduce any new method of management, operation or accounting (except as required by GAAP or any applicable Law or Order); (ii) comply with the terms and conditions of, and not cancel, its present insurance policies; (iii) use its commercially reasonable efforts to (A) maintain and preserve its business organization intact, and (B) retain the services of its present employees; (iv) comply with all applicable Governmental Requirements and provide notice to Buyer of any governmental inquiry, notice or investigation; and (v) maintain the instruments and agreements governing its outstanding Indebtedness and leases on their present terms and not incur new Indebtedness or enter into new lease instruments or agreements, except for endorsement of the promissory notes evidencing the Seller Loans. (b) From the date hereof until the Closing, except with the prior written consent of the Buyer or as otherwise expressly permitted or required by this Agreement, the Sellers shall ensure that none of the Mandara Entities will: (i) make any change in its Charter Documents; (ii) issue any additional Equity Interests or issue or otherwise create any options, warrants or rights to acquire any of its Equity Interests; (iii) make any Restricted Payment (other than cash distributions to the shareholders of the Company that are made in accordance with SECTION 1.4(E) and that that do not result in the consolidated cash balance of the Company being less than the Target Cash Balance Amount); (iv) increase or agree to increase the compensation payable to any member of its Board of Directors, or any officers, directors, managers, consultants or employees except for increases in the ordinary course consistent with past practice; (v) make any investments (other than short-term certificates of deposit of a commercial bank or trust company) in the Equity Interests (or options, warrants or rights to acquire the Equity Interests) or Indebtedness of any Person; (vi) enter into any contract to incur, or otherwise agree to incur any liability or make any capital payment or expenditure of any kind in excess of $50,000, other than in the ordinary course of its business and consistent with its past practice; (vii) (A) prepay any Indebtedness other than in the ordinary course of business andconsistent with past practices, to the extent consistent therewithor (B) create, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur assume or permit to be incurred created or imposed any Liability (other than Accounts Payable Liens, except for Permitted Liens, upon any of its assets or in connection with the performance of Assumed Contracts) that would be properties, whether now owned or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, hereafter acquired other than in the ordinary course of business consistent with past practice; (gviii) make except as required by any applicable Law or rescind Order, (A) adopt, establish, amend or terminate any material Tax election of its Employee Benefit Plans, or any Other Compensation Plans or Employee Policies and Procedures or (B) take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practicesdiscretionary action, or settle omit to take any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of the foregoing.contractually

Conduct of Business Pending the Closing. During (a) Except as contemplated by this Agreement or except as set forth on Schedule 7.1, Sellers covenant and agree that, except as otherwise expressly required or permitted by the period from terms of this Agreement or except as expressly approved in writing by Purchaser, between the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the ClosingClosing Date, the Company shall, and Sellers shall cause each of its Subsidiaries to, carry on conduct the Business in the ordinary course course, and consistent with past practice of business andthe Business, and Sellers shall not change their operations or policies (including policies and procedures with regard to maintenance and repair of the Dealership facilities), except to the extent consistent therewith, use all commercially reasonable efforts necessary to preserve comply with Applicable Law or the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess requirements of the amounts Manufacturers. Except as set forth on Schedule 7.1. Without limiting , Sellers shall, between the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through Effective Date and the Closing Date, use their reasonable efforts to preserve intact each Seller’s business organization, to keep available the Company services of its current officers, employees and consultants, and to preserve its present relationships with customers, suppliers and other Persons with which it has business relations, subject to the terms and provisions of this Agreement. Further, except as set forth on Schedule 7.1, Sellers agree that between the Effective Date and the Closing Date, Sellers shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: Purchaser (which may not be unreasonably withheld, conditioned or delayed): (a) abandon take or knowingly permit any rights under action or omit to take any action that Sellers know, when taken or omitted, is reasonably likely to cause any of the Assumed ContractsSellers’ Express Representations to become untrue; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in enter into any Contract with any Person that would constitute an Assumed Contract by the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any operation of the Acquired Assetsprovisions of this Section 7.1, other than as would not result Contracts entered into in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (compliance with this Section 7.1, and other than Accounts Payable Contracts that relate to a We Owe, Work in Progress or in connection with the performance of Assumed Contracts) Customer Deposit that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business was entered into in the ordinary course of business; , and consistent with past practices, and except as expressly provided for in this Section 7.1, not amend, modify or terminate any of the Assumed Contracts or Construction Documents, without prior consent of Purchaser; (c) fail to maintain in full force and effect all insurance policies currently maintained by each Seller (other than renewals in the ordinary course); (d) fail to comply with all material provisions contained in the Assumed Contracts; (e) sell, assign, transfer or dispose of any of the Fixed Assets except in the ordinary course of business; (f) increase the salary of undertake any Identified Employee at dealer trades with others or after the time such person becomes an Identified Employee, its Affiliates (directly or indirectly) that are not in accordance with past practices; (g) other than in the ordinary course of business and consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, except as otherwise permitted by the provisions of this Section 7.1, enter into any new Contract, lease, encumbrance or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle other agreement or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights underContract, lease encumbrance or enter into any settlement regarding other agreement that, in such case, affects the breach use or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any operation of the foregoing.Real Estate, that would be binding upon Purchaser or run with title to the Real Estate and which cannot be terminated without charge, cost, penalty or premium on

Conduct of Business Pending the Closing. (a) During the period from Interim Period, except (1) as required or expressly permitted by the date provisions of this Agreement and continuing until the earlier Agreement, (2) as set forth in Section 6.02(a) of the termination Seller Disclosure Schedule, (3) as may be required under applicable Law or a Contract or in response to an emergency or (4) with the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Sellers shall (A) cause each Acquired Company to operate in the ordinary course in all material respects consistent with past practice and (B) use their commercially reasonable efforts to (1) preserve, maintain and protect the assets and properties of each Acquired Company, (2) comply with Laws, Material Permits and Material Contracts and (3) maintain all material relationships with customers, suppliers and Governmental Entities. Without limiting the foregoing, during the Interim Period, except (w) as expressly permitted by the provisions of this Agreement Agreement, (x) as set forth in accordance Section 6.02(a) of the Seller Disclosure Schedule, (y) as may be required under applicable Law or a Contract or in response to an emergency or (z) with its terms the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or the Closingdelayed), the Company shall, and Sellers shall cause each of its Subsidiaries tothe Acquired Companies not to do the following: (i) sell, carry transfer, convey, abandon, cancel or otherwise dispose of any material Assets, other than (A) sales, transfers, conveyances abandonments, cancelations or other dispositions of obsolete fixtures, obsolete equipment and obsolete tangible personal property or (B) distributions by such Acquired Company to the respective Seller of cash pursuant to Section 6.15(b); provided that such distributions are excluded from the calculation of the Net Working Capital of such Acquired Company as of the Closing Date (including, for the avoidance of doubt, in the calculations of the Estimated Net Working Capital Adjustment Amount and the Closing Date Net Working Capital Adjustment Amount); (ii) merge or consolidate with any other Person or acquire all or substantially all of the assets of any other Person; (iii) except for any Affiliate Obligation that is subject to Section 6.02(c), enter into, terminate, materially amend, grant any waiver of any material term under, or grant any material consent with respect to any Material Contract (or any Contract that would be a Material Contract if in existence on the Business date hereof); (iv) except with respect to the change or renewal of the Title V air operating permits as provided in Section 6.02(d), enter into or modify, terminate, cancel, renew or assign any Material Permit or any permit related to the Milford Uprate, other than any Material Permit that will expire prior to the Closing by its terms, and other than the renewal of any Material Permit in a timely fashion without material modifications to the terms of such Material Permit, except as may be required by applicable Law; (v) issue, reserve for issuance, pledge or otherwise encumber, redeem or sell any of its respective equity interests; (vi) liquidate, dissolve or otherwise wind up its business or operations; (vii) purchase any equity securities of any Person; (viii) amend or modify its respective Organizational Documents in a manner adverse to Purchaser; (ix) effect any recapitalization, reclassification or other change in its capitalization; (x) acquire any asset or make or commit to incur any capital expenditure (i) in excess of $500,000 individually and $1,000,000 in the aggregate, other than capital expenditures that are fully funded prior to Closing or (ii) in connection with the Milford Uprate; (xi) engage in any material new line of business; (xii) other than any Indebtedness for borrowed money or capitalized lease obligations or Liens which will be discharged at Closing, create, incur or assume any such Indebtedness or grant any Lien on any of its assets or properties (other than any Permitted Liens); (xiii) settle any Claim or compromise or settle any liability, unless the amount of such settlement or compromise involves only monetary obligations and does not exceed $500,000, individually, or $1,000,000, in the aggregate, for all such amounts under this Section 6.02(a)(xii), in excess of the amounts of (A) any proceeds received from any insurance policies in connection with such settlement or compromise or (B) the amount of such settlement or compromise reflected on the Financial Statements (including the notes thereto) (xiv) cancel or materially change coverage under any Insurance Policy (other than where such change is necessary because existing coverage is no longer available on commercially reasonable terms); (xv) except as may be required to meet the requirements of applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice; (xvi) cause or allow to be hired, or hire for its account any employees, except in the ordinary course of business andconsistent with past practice to fill any vacancy resulting from the termination of employment of an employee; or hire any plant manager without the Purchaser’s prior written consent, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing which such consent shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Datebe unreasonably withheld, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at conditioned or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contractsdelayed; (bxvii) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than except in the ordinary course of business consistent with past practice, grant any increase in the compensation or severance pay to any Person who will be a Continuing Employee, except, in the case of a material increase in severance pay, if the Seller or any of its Affiliates (other than the Acquired Companies after the Closing) will be solely responsible therefor, or adopt, enter into or materially amend any Benefit Plan in respect of any Person who will be Acquired Company Related Employees; (gxviii) make any change in its Tax accounting or rescind Tax reporting principles, methods or policies, make any material Tax new, or change any existing, election or take any material Tax position (unless required by law) or file with respect to Taxes, amend any Tax Return or change its fiscal year or financial or Tax accounting methodsReturn, policies or practices, or settle any Tax Liabilityliability, except enter into any Contract with respect to Taxes, enter into any settlement or closing agreement with respect to Taxes with any Taxing Authority, in each case as would not case, to the extent such change, election, settlement, Contract or agreement could reasonably be expected to affect the Buyergive rise to a material adverse consequence to an Indemnified Purchaser Entity; (hxix) institute, settle take any action that would jeopardize the exempt wholesale generator status of or agree the market based rate authority granted to settle any litigation, action or Proceeding before any court or Governmental Entity relating to each of the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual PropertyCompanies; or (jxx) enter into any Contract agree or commit to do any of the foregoing. (b) Notwithstanding anything to the contrary set forth in Section 6.02(a), prior to the Closing, any Acquired Company may transfer ownership of or any other interest in any of the assets set forth in Section 6.02(b) of the Seller Disclosure Schedule to the respective Seller or any Affiliate of such Seller (other than the Acquired Companies). (c) Notwithstanding anything to the contrary set forth in Section 6.02(a): prior to the Closing, each Seller shall cause (at its sole cost and expense and without right to any contribution or reimbursement from either of the Acquired Companies or Purchaser) all obligations, Contracts or other liabilities between its respective Acquired Company, on the one hand, and either Seller, the other Acquired Company or any of its Affiliates (other than such Acquired Company), on the other hand, to be terminated and of no further force and effect, with no obligations arising as a result of or surviving such termination. (d) Prior to the Closing, each Seller shall reasonably consult with the Purchaser in connection with the application for renewal or change of the Title V air operating permits, whether such renewal has been submitted prior to the date hereof or to be filed after the date hereof, by (i) providing periodic updates to the Purchaser of material developments in connection with such application, (ii) sharing with the Purchaser notices, drafts, requests for information and other material correspondence to and from the applicable Governmental Entity (including allowing Purchaser the opportunity to review drafts before filing), (iii) notifying the Purchaser in advance of any material meetings, conference calls or other proceedings with the applicable Governmental Entity in connection with such application and (iv) considering in good faith the Purchaser’s input in connection with such notices, drafts, request for information, correspondence, meetings, conference calls and proceedings. Each Seller shall not agree to the finalization of such renewal of the Title V air operating permit for its Facility on terms that are materially less favorable, in the aggregate, to Purchaser than those set forth in the existing Title V permit without the prior written consent of the Purchaser (which shall not be unreasonably withheld, conditioned or delayed). (e) At the request of Purchaser, prior to Closing, Sellers shall, and shall cause their Affiliates to, assign to Milford any consulting or engineering contracts primarily relating to the Milford Uprate to which Sellers or their Affiliates are a party.

Conduct of Business Pending the Closing. During the period Seller agrees that, from the date of this Agreement and continuing Effective Date until the Closing Date or the earlier of the termination of this Agreement pursuant to Article 8, unless otherwise agreed to by Buyer in writing or expressly contemplated by this Agreement: (a) Seller shall cause the Company, to the extent that it is entitled to do so, to conduct its operations in the ordinary and usual course of business and consistent with past practice, and Seller shall cause the Company, to the extent that it is entitled to do so, to exercise its commercially reasonable efforts to (i) maintain the Material Contracts in accordance with its terms or their terms, (ii) maintain the ClosingPermits, the Company shallincluding Environmental Permits, in full force and effect, and shall obtain any renewals of such Permits required prior to the Closing Date, (iii) preserve intact its business organization and (iv) cause each of its Subsidiaries tothe Facility to be operated and maintained and repaired, carry on as the Business case may be, in all material respects in accordance with the ordinary course of business andconsistent with past practices and in accordance with prudent utility practices, to applicable Laws and Permits and the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess applicable requirements of the amounts set forth on Schedule 7.1ROVA I PPA and the ROVA II PPA. Without limiting the generality of the first sentence of this Section 7.1foregoing, during the period from the date of this Agreement through the Closing Date, Seller shall exercise its rights to prevent the Company shall notfrom (unless, and shall not permit any of its Subsidiaries toin each case, without the Buyer provides prior written consent of Buyer:consent): (ai) abandon any rights under any of the Assumed Contracts; terminateamending its Governing Instruments, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contractsexcept as required by this Agreement; (bii) authorizing for issuance or issuing, selling or delivering (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any Equity Interests in the Company; (iii) participating in any merger, consolidation or other than sales business combination, or sale of Inventory all or substantially all the assets of the Company; (iv) (A) incurring, assuming or otherwise becoming liable or responsible for any Indebtedness not currently outstanding (except in the ordinary course of business and consistent with past practice); (B) making any loans, advances or capital contributions to, or investments in, any other Person; (C) entering into any power purchase agreement, tolling agreement or other Contract obligating the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of Company to sell any Acquired Assets; electricity generated by the Facility; (cD) mortgage, pledge or subject to Liens (entering into any Contract other than Permitted Liens)in the ordinary course of business consistent with past practice, any propertyin accordance with the Company Budget, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance transactions contemplated by this Agreement; (E) entering into any Contract with Seller or any Affiliate of Assumed Contracts) that would be Seller which is not terminated or would increase an Assumed Liability terminable at will by the Company as of the Closing without any payment, penalty or subsequent to other liability in connection therewith (provided, that Seller shall provide Buyer with written notice thereof); or (F) authorizing any single capital expenditure which is in excess of $100,000 other than capital expenditures required by any Material Contract or made in accordance with the ClosingCompany Budget; (ev) fail to replenish adopting or amending (except as may be required by Law) any bonus, profit sharing, compensation, severance, termination, pension, retirement, deferred compensation, employment, severance or other employee benefit agreements, trusts, plans, funds or other arrangements for the Inventory and Supplies benefit or welfare of any present or former director, officer or employee or the Business dependent or beneficiary of any present or former director, officer or employee, or (except for normal increases in the ordinary course of businessbusiness that are consistent with past practices and that, in the aggregate, do not result in a material increase in benefits or compensation expense) increasing in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any existing plan and arrangement (including the granting of stock options, stock appreciation rights, shares of restricted stock or performance units) or entering into any contract, agreement, commitment or arrangement to do any of the foregoing; (fvi) increase modifying, amending, supplementing, canceling, terminating or renewing any Material Contract as in effect on the salary Effective Date, except for the renewal of a Material Contract that would otherwise expire and be required to be replaced with another Material Contract provided such renewal is in the ordinary course of business and on terms that are not materially more onerous to the Company than in such Material Contract prior to renewal except for price adjustments provided for in such Material Contract; (vii) except as contemplated by the Company Budget, acquiring, selling, leasing or disposing of any Identified Employee at or after the time such person becomes an Identified Employee, Assets other than in the ordinary course of business consistent with past practice; (gviii) make or rescind making any material Tax election or take any material Tax position (unless required by lawother than elections that are made consistently with past practice) or file settling or compromising any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as liability that would not reasonably be expected to affect create or otherwise cause any liability of the BuyerCompany that will exist or become due on or after the Closing; (hix) instituteincurring any trade accounts payable or other expenses other than in the ordinary course of business consistent with past practice or pursuant to the Company Budget; (x) except with respect to Indebtedness as permitted pursuant to Section 5.2(a)(iv)(A) and Permitted Encumbrances, settle pledging or agree hypothecating any of the Assets to settle secure Indebtedness; (xi) making any litigationdistribution or dividend other than cash distributions by the Company in the ordinary course of business consistent with past practice; (xii) waiving or releasing any right of material value; (xiii) changing financial or accounting methods or accounting practices prior to Closing unless required by GAAP or applicable Law; (xiv) changing the business it conducts in any material respect; (xv) taking any action other than in the ordinary course of business; (xvi) settling or compromising any actual, pending or threatened Claim, action or Proceeding before proceeding involving, or otherwise resulting in an economic cost of, more than $100,000 individually or $250,000 in the aggregate with any court Governmental Authority or Governmental Entity relating other Person other than the resolution of the pending business personal property tax dispute between the Company and the County of Halifax, State of North Carolina; provided that the resolution of such business personal property tax dispute does not contain an agreement by the Company to (x) an assessment of the Company's property for any period after December 31, 2003 of more than $147 million, or (y) any rate increase, surcharge or special assessment that applies only to the Acquired Assets, or modify in any manner that is adverse to property of the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual PropertyCompany; or (jxvii) enter into any Contract agreeing (in writing or otherwise) to do take any of the foregoingforegoing actions. (b) Seller shall give notice to Buyer, as soon as practicable but in no event more than five (5) days from the date notice is received by Seller or, to Seller's Knowledge, the Company, of (i) any notice of violation or threatened action by any Governmental Authority against the Company, or (ii) any default notice or actual, pending or threatened Claim against the Company by any other Person. (c) Seller will not sell, transfer, pledge, hypothecate, divide, assign or otherwise alienate any portion of the Interest. (d) Seller shall cause the Company, to the extent that it is entitled to do so, to: (i) keep full and complete Books and Records, consistent with past practice; (ii) maintain in full force and effect the insurance policies heretofore maintained for the benefit of the Company (or policies providing substantially the same coverage); (iii) take such action as may be reasonably necessary to preserve its Assets in good working condition, ordinary wear and tear excepted (and subject to repairs contemplated by the Company Budget); (iv) promptly advise Buyer in writing of any material reduction or, to the Knowledge of Seller, threatened change in the business prospects, properties or condition, financial or otherwise, of the Company that has occurred or that Seller reasonably believes will occur; (v) promptly advise Buyer in writing of any change in methods of accounting or accounting practices implemented by the Company as required by GAAP or applicable Law; and (vi) conduct the business of the Company in compliance in all material respects with all applicable Laws. (e) Seller shall provide notice to Buyer as soon as is reasonably practicable of the payment, discharge or satisfaction by the Company of any material Claims or Losses (whether absolute, accrued or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of liabilities (i) reflected or reserved against in the Current Balance Sheet, (ii) incurred in the ordinary course of business since the Financial Statement Date, (iii) incurred in accordance with the Company Budget, or (iv) arising in the ordinary course of business under any existing Contract. (f) Seller shall provide notice to Buyer of the occurrence of any Casualty Loss as soon as is reasonably practicable after Seller obtains Knowledge of such Casualty Loss; provided, however, such notice shall be given in any event within five (5) days after Seller obtains such Knowledge. (g) Notwithstanding anything to the contrary in paragraphs (a) or (d) of this Section 5.2, Seller shall have no obligation to take any action, or refrain from taking any action, if Seller, acting in good faith, has determined that the taking or refraining from the taking of such action will result in a breach by Seller of any fiduciary duty or contractual duty under the Partnership Agreement or any breach by the Company of any contractual duty; provided, however, this provision shall not apply to clauses (i) through (iii) of paragraph (a) of this Section 5.2. Nothing in this Section 5.2(g), or the action or inaction of Seller pursuant to this Section 5.2(g), shall amend, supplement, modify or otherwise qualify any of the representations or warranties set forth in Article 3 or otherwise impair Buyer's rights under Section 6.1(b). Seller shall give Buyer prompt written notice of any action taken or not taken in reliance on this Section 5.2(g).

Conduct of Business Pending the Closing. During (a) Seller will take such action as may be necessary to maintain, preserve, renew and keep in full force and effect the period from the date existence, rights and franchises of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, Seller relating to the extent consistent therewithBusiness, use all commercially reasonable efforts to preserve the business organizations of Seller relating to the Business intact and preserve the goodwill of and relationships with Governmental Entitiesintact, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, to keep available to Buyer Seller's officers and employees employees, and to preserve for Buyer the present relationships of Seller with its suppliers and customers and others having business dealings relationships relating to the Business with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts;it. (b) other than sales Seller will not do or omit to do any act, or permit any act or omission to act, which may cause a breach of Inventory any material contract, commitment or obligation of Seller in respect of the ordinary course Business, or any breach of business any representation, warranty, covenant or agreement made by Seller herein. (c) Seller will duly comply in all material respects with all laws applicable to the disposition Business and all laws, compliance with which is required for the valid consummation of obsolete equipment, the transactions contemplated by this Agreement. (d) Seller will not (i) enter into or extend any labor contract in respect of the Business with any hourly-paid employees or any union or (ii) agree to take any such action. (e) Seller will not terminate or modify any lease, license, surrenderpermit, relinquish, sell, transfer, convey, assign contract or otherwise dispose other agreement in respect of any Acquired Assets;the Business to which it is a party. (cf) Seller will not mortgage, pledge or subject to Liens (lien or any other than Permitted Liens)encumbrance, any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing;. (dg) incur Seller will not enter into any transaction involving the Business and more than $100,000 or permit to be incurred any Liability a commitment extending more than six (other than Accounts Payable or in connection with the performance of Assumed Contracts6) that would be or would increase an Assumed Liability as of or subsequent to the Closing;months. (eh) fail to replenish the Inventory and Supplies of the Business Except as set forth in Section 6.10, Seller will not enter into any transaction outside the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets;Business. (i) transfer or grant any rights under, modify any existing rights under, or Seller will not enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract agreement to do any of the foregoing. (j) Seller will maintain existing security measures at the Facility and the Real Property and will not remove any of the Assets from the Facility or the Real Property.

Conduct of Business Pending the Closing. During the period from From the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the ClosingClosing Date, the Company Sellers shall, and shall cause each of its Subsidiaries the Company to, carry on operate the Business in the ordinary course Ordinary Course of business andBusiness. Consistent with the foregoing, Sellers shall cause the Company to keep and maintain the extent consistent therewith, assets of the Company in good operating condition and repair and to use all its commercially reasonable efforts consistent with good business practice to preserve maintain the Business business organization of the Company intact and to preserve the goodwill of and relationships with Governmental Entitiesthe suppliers, contractors, licensors, employees, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings relations with the BusinessCompany. Sellers shall not, provided that the foregoing and shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, permit the Company shall endeavor to maintain the Net Receivables Amountto, the Inventory Value and each component of Inventory at take any action that would, or that reasonably would be expected to, result in excess any of the amounts conditions to Closing set forth on Schedule 7.1in ARTICLE VII not being satisfied. Without limiting the generality of the first sentence of this Section 7.1foregoing, during except as set forth on Schedule 5.2 or to the period from extent Purchaser otherwise Consents (which consent shall not be unreasonably withheld, delayed or denied) in writing, prior to the date of this Agreement through the Closing DateClosing, the Company Sellers shall not, and shall cause the Company not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any amend the Organizational Documents of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsCompany; (b) (i) issue or sell any Equity Interests of the Company, (ii) grant any options, warrants, calls, or other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign rights to purchase or otherwise dispose acquire any Equity Interests of the Company, or (iii) split, combine, reclassify, cancel, redeem, or repurchase any Acquired AssetsEquity Interests of the Company; (c) mortgagesell, pledge lease, transfer, or subject to Liens otherwise dispose of, or incur any Lien (other than a Permitted Liens)Lien) on, any property, business properties or any assets of the Acquired AssetsCompany, other than as would not result or used, held for use or useful in any Liability that would be or would increase an Assumed Liability as the operation of or subsequent to the ClosingBusiness; (d) incur except for Equipment and Truck Indebtedness incurred on or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent prior to the ClosingClosing Date, make any capital expenditures in an aggregate amount of more than Ten Thousand Dollars ($10,000); (e) fail except for Equipment and Truck Indebtedness incurred on or prior to replenish the Inventory and Supplies Closing Date, create, incur, guarantee, or assume any Indebtedness in an aggregate amount of the Business in the ordinary course of businessmore than Ten Thousand Dollars ($10,000); (f) increase enter into any transaction between the salary Company, on the one hand, and any Seller or any Affiliate of any Identified Employee at Seller, on the other hand, that (i) is not on an arm’s-length basis or (ii) would be binding on the Company or the Business after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practiceClosing; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methodsloans, policies or practicesadvances, or settle capital contributions to, or investments in, any Tax Liability, except in each case as would not reasonably be expected to affect the Buyerother Person (including any Affiliate); (h) instituteacquire any business, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired AssetsEquity Interests, or modify in assets of any manner that is adverse to the Business or the Acquired Assetsother Person (whether by merger, rescind or terminate a material Permitsale of Equity Interests, allowancesale of assets, or credit (or application therefor) relating to the Business or the Acquired Assetsotherwise); (i) transfer or grant create any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; orSubsidiary; (j) enter into any new line of business; (k) grant any increase in the base salary or wages, bonus opportunity, or other compensation or benefits payable to any Employee or consultant, in each case except (i) base salary or hourly wage increases for Employees or consultants with annual compensation of less than $50,000 in the Ordinary Course of Business, (ii) as required by Law, or (iii) as required by the terms of any existing Contract, Company Benefit Plan, or collective bargaining agreement set forth on Schedule 3.14(a) in effect as of the date hereof; (l) (i) adopt, enter into, amend or terminate any Company Benefit Plan, except immaterial amendments in the Ordinary Course of Business in connection with a renewal thereof, (ii) grant any equity or equity-based award, or (iii) take any action to accelerate the vesting or payment of, or otherwise fund or secure the payment of, any compensation or benefits under any Company Benefit Plan, in each case except (x) as required by Law, or (y) as required by the terms of any existing Contract, or Company Benefit Plan; (m) hire or engage any employee who would be an Employee or consultant with aggregate annual compensation in excess of $50,000, or terminate any Employee or consultant other than for cause; (n) amend or modify any collective bargaining agreement or other agreement with a labor union or works council; (o) (i) amend or modify in any material respect any Contract, Real Property Lease, Outbound IP License, or Inbound IP License, (ii) terminate, not renew, or extend any Material Contract, Real Property Lease, Outbound IP License, or Inbound IP License, or (iii) enter into a Contract that, if entered into prior to do the date hereof, would have been a Material Contract, Real Property Lease, Outbound IP License, or Inbound IP License, provided that this provision shall not prevent the Company from entering into or modifying any customer Contract in the Ordinary Course of Business; (p) make any change in any accounting principle, policy, or procedure used by the Company or the Business (other than regarding Taxes, which shall be governed by paragraph (q) below), other than changes required by GAAP or applicable Law; (q) make or change any Tax election, change any annual Tax accounting period, file any amended Tax Return, enter into any agreement with respect to Taxes with any Governmental Authority (including a closing agreement under Section 7121 of the Code), settle any Tax claim or assessment, surrender any right to claim a refund for Taxes, consent to any extension or waiver of the limitation period applicable to any Taxes, make any voluntary Tax amnesty or similar filing or adopt or change any accounting principle, policy, or procedure used by the Company regarding Taxes; (r) accelerate or delay collection of any notes or Accounts Receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the Ordinary Course of Business; (s) delay or accelerate payment of any Accounts Payable or other Liability beyond or in advance of its due date or the date when such Liability would have been paid in the Ordinary Course of Business; (t) offer any rebates, discounts, commissions, incentives, or inducements for the purchase of products or services that are materially different from those rebates, discounts, commissions, incentives or inducements offered by the Company in the Ordinary Course of Business, or engage in any form of “channel stuffing” or other activity that could reasonably be expected to result in a reduction, temporary or otherwise, in the demand for the Company’s products and services following the Closing; (u) make any material change in the Company’s general pricing practices or policies or any change in the Company’s credit or allowance practices or policies other than in the Ordinary Course of Business; (v) declare, set aside, or pay any dividend or any other distribution with respect to the Shares, except for distributions to Sellers (A) to be used exclusively to pay their respective (i) annual state and Federal income taxes arising from Sellers’ respective equity in the Company and Tribeca Leasing for calendar year 2023 and (ii) estimated quarterly installments of the foregoing for each calendar quarter that ends prior to the Closing Date, and in each case as calculated in good faith by Sellers’ and their accountants, which shall take into account amounts shown on Internal Revenue Service Form 1120-S filed by the Company and similar state or local forms filed by the Company for calendar year 2022 and such other adjustments as in the reasonable business judgment of Sellers’ and their accountants are necessary or appropriate to reflect the profits, if any, of the Company for calendar year 2023; and (B) arising out of any Check Recovery received by the Company (of which, $30,499.01 has been received as of the date of this Agreement); (w) make any changes in its accounting systems, policies, or practices; (x) (i) commence any material Proceeding; (ii) settle any material Proceeding (other than the Class Action Litigation and the Landlord Litigation identified on Schedule 3.18(a) and only in the event that the aggregate settlement amount is less than or equal to $2,500,000) or (iii) cancel any other debts owed to or claims held by the Company other than, in the case of this sub-clause (iii), in the Ordinary Course of Business; (y) waive, abandon, or otherwise dispose of any rights in or to any Business Intellectual Property; (z) adopt a complete or partial plan of liquidation, dissolution, restructuring, recapitalization, bankruptcy, suspension of payments, or other reorganization; or (aa) agree to do, approve, or authorize any of the foregoing.

Conduct of Business Pending the Closing. During the period from (a) From the date of this Agreement and continuing until hereof through the Closing Date or the earlier of the termination of this Agreement in accordance with its terms Agreement, except as may be expressly permitted or contemplated by this Agreement, or the ClosingSchedules attached hereto, or as otherwise agreed to in writing by Buyer, Seller shall cause the Company shallBusiness to be conducted in the usual, regular and ordinary course of business, consistent with past practice, and shall cause each of use its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable diligent efforts to preserve intact the Business intact Business, keep available the services of its employees and preserve the goodwill of and its relationships with Governmental Entities, customersclients, suppliers, partners, lessorslicensees, licensors, licensees, contractors, distributors, agents, officers and employees agents and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries toforegoing, without the prior written consent of Buyer, except as expressly permitted or contemplated by this Agreement, or the Schedules attached hereto, during the period from the date hereof to the Closing Date or the earlier termination of this Agreement, Seller: (ai) abandon shall not acquire or agree to acquire any rights under any of business related to the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed ContractsBusiness; (bii) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipmentshall not sell (including by sale-leaseback), lease, license, surrender, relinquish, sell, transfer, conveylicense (whether on an exclusive or non-exclusive basis), assign mortgage or otherwise dispose of encumber or subject to any Lien, any Acquired AssetsAssets or interests therein; (ciii) mortgage, pledge shall maintain in full force and effect policies of insurance covering the Business; (iv) shall not incur or subject permit the incurrence of any liability related to Liens (other than Permitted Liens), any property, business or any of the Acquired AssetsBusiness that would constitute an Assumed Liability, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business for accruals in the ordinary course of business; (fv) shall not enter into or amend any employment, severance, special pay arrangement with respect to termination of employment or other arrangement or agreement with any executive officers, managing directors, directors, managers or associates; (vi) shall not increase any salaries or other compensation payable to any managing directors, directors, managers or associates except in the salary ordinary course of business and consistent with past practice or to any additional managing directors, directors, managers, employees or consultants, except in the ordinary course of business and consistent with past practice; (vii) shall not adopt, enter into or amend, or become obligated under, any new, bonus, profit sharing, compensation, collective bargaining, stock option, pension, retirement, deferred compensation, health care, employment or other employee benefit plan, agreement, trust, fund or arrangement for the benefit or welfare of any Identified Employee employee or retiree, except as required to comply with changes in applicable law occurring after the date hereof; (viii) shall not enter into any contract, license or other agreement that contains any provision that, as a result of the consummation of the transactions contemplated by this Agreement, would (assuming that the other party's consent or approval is not obtained, to the extent required) result in any penalty, additional payments or forfeiture that would be payable or sufferable by Buyer at or after the time such person becomes Closing Date; (ix) shall not make any single new commitment or increase any single previous commitment for capital expenditures for the Business in an Identified Employeeamount exceeding $10,000; (x) shall not accelerate or delay the sale of the services of the Business, other than except as may be necessary in the ordinary course of business in arm's-length third party transactions; (xi) shall not sell, assign, transfer, license, abandon or convey any of the Intellectual Property except in the ordinary course of business consistent with past practicepractice in arm's-length third party transactions; (gxii) except as would not adversely affect Buyer, shall not change any method of Tax accounting, make or rescind any material Tax election or take any material Tax position (unless required by law) or election, file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practicesother than in a manner consistent with past practice, or settle any material Tax LiabilityClaim; (xiii) shall use reasonable efforts (A) to cause to be satisfied the conditions set forth in Article VIII which are under the control of Seller, except and (B) shall not take actions which cause the representations set forth in each case Article IV to change in any material adverse way, subject however as to both (A) and (B), Seller remains free to make whatever reasonable business decisions Seller deems to be necessary or appropriate under the applicable circumstances for the ongoing business operations and survival of Seller; (xiv) shall not waive or compromise any material claim or right or fail to renew any Permit; and (xv) shall not authorize any of, or commit or agree to take any of, the foregoing actions. (b) Seller will promptly advise Buyer in writing of (i) any event known to Seller which would not render any representation or warranty of Seller contained in this Agreement or any Related Document, if made on or as of the date of such event or the date of the Closing, untrue or inaccurate in any respect, (ii) any change, condition or event that has or could reasonably be expected to affect have material adverse effect or (iii) any failure of Seller to comply with or satisfy in any respect any covenant, condition or agreement to be complied with or satisfied hereunder. Notwithstanding the Buyer;disclosure to Buyer of any matter pursuant to this Section 6.12(b), Seller shall not be relieved of any liability for, nor shall the providing of such information by Seller to Buyer be deemed a waiver or, (A) the breach of any representation, warranty, covenant or agreement of Seller contained in this Agreement or any Related Document or (B) the related indemnification obligations of Seller under Section 10.2. (hc) instituteSeller, settle on the one hand, and Buyer, on the other hand, will promptly give notice to the other upon becoming aware that any action is pending or agree to settle any litigation, action threatened by or Proceeding before any court or Governmental Entity relating governmental authority, in each case with respect to the Acquired Assetstransactions contemplated by this Agreement or any Related Document. Seller, or modify in any manner that is adverse to on the Business or other hand, and Buyer, on the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets;other hand, (i) transfer will cooperate with each other in connection with the prosecution, investigation or grant defense of any rights undersuch action, modify (ii) will supply promptly all information reasonably and legally requested by the other, by any existing rights undersuch governmental authority or by any party to any such action and (iii) will each use their reasonable efforts to cause any such action to be determined as promptly as practicable and in a manner which does not impact adversely on, or enter into any settlement regarding and is consistent with, the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of transactions contemplated by this Agreement and the foregoingRelated Documents.