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

Conduct of Business Pending the Closing. 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 hereof to the Closing, the Company will, and will cause each of its Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, 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 service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closing. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, neither the Company nor any of its Subsidiaries shall, without the prior written consent of the Investors: (a) amend its certificate of incorporation or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class 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); (i) split, combine or 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 dividends or distributions made to the Company); (iii) make any other actual, constructive or deemed distribution in respect of any shares 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, repurchase or otherwise acquire any of its securities or any securities of any of its Subsidiaries; or (v) amend the terms of any of its outstanding securities such as would increase its obligations thereunder; (d) adopt a plan of complete or partial liquidation or dissolution except as set forth on Schedule 5.01(d); (e) become a party to any merger (other than a merger among wholly owned Subsidiaries of the Company and no other Persons), consolidation, combination, recapitalization, reorganization or restructuring; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings in the 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 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 wholly-owned Subsidiaries of the 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 initial 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; (l) 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 revoke any Tax election, or settle or compromise any Tax liability, or change (or make a request to any taxing authority to change) any aspect of its method of accounting for Tax purposes; (o) pay, 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 compromise any pending or threatened suit, action or material claim or any claim relating to the Transactions; (q) 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 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 actions 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. Except as contemplated by this Agreement Sagebrush covenants 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 hereof to the Closing, the Company will, and will cause each of its Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent agrees with past practice and, to the extent consistent therewith, 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 service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closing. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this AgreementWSMP that, prior to the Closing, neither the Company nor any of its Subsidiaries shall, without the prior written unless WSMP shall otherwise consent in writing and except as otherwise contemplated by this Agreement or Section 6.7 of the InvestorsSagebrush Disclosure Document: (a) amend its certificate business and the business of incorporation its Subsidiaries will be conducted in the ordinary and usual course, it shall use reasonable efforts to keep intact its and their business organizations and goodwill, and it shall 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 bylaws (or other similar governing instrument)financial relationships with them; (b) authorize for issuanceit 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, issuestate, selllocal, deliver 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 or agree or commit declarations would not be reasonably likely to issue, sell or deliver have a Material Adverse Effect on Sagebrush) and (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights 2) to purchase or otherwise) any stock of any class or other equity interest or any equity equivalents (including, without limitation, any stock options or stock appreciation rights)pay, or any other securities convertible into make full and adequate provision for the payment of, all taxes and governmental charges due from or exchangeable for any stock, other equity interest or equity equivalentpayable by it, except for such taxes and charges the issuance failure to make prompt payment of which is not reasonably likely to have, individually or sale of Common Stock pursuant to in the exercise of currently outstanding warrants and stock options disclosed aggregate, a Material Adverse Effect on Schedule 3.02(a)Sagebrush; (ic) it will not (1) amend or restate its charter or bylaws or (2) split, combine or reclassify any shares of its capital stock; (ii) securities, or declare, set aside or pay any dividend or other distribution (whether 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 or any combination thereof) in respect of its capital stock (other than dividends or distributions made to the Company); (iii) make any other actual, constructive or deemed distribution in respect of any shares 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, repurchase or otherwise acquire any of its securities or any securities of any of its Subsidiaries; or (v) amend the terms of any of its outstanding securities such as would increase its obligations thereunderproperty; (d) adopt a plan neither it nor any of complete its Subsidiaries will, in any such case, (1) issue or partial liquidation agree to issue any additional shares of, or dissolution 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 as set forth on Schedule 5.01(d)that Sagebrush 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) become a party to neither it nor any merger (other than a merger among wholly owned of its Subsidiaries will create, incur, assume or guarantee any long-term indebtedness for borrowed money or, except in the ordinary course of the Company business and no other Persons)consistent with past practice, consolidation, combination, recapitalization, reorganization or restructuringany short-term indebtedness for borrowed money; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings in the 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 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 wholly-owned Subsidiaries of the 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 neither it nor any of its material assets, tangible or intangible, or create or suffer to exist any Lien thereupon; Subsidiaries will (g1) except as may be required by Lawadopt, enter into, adopt into or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreementwarrant, pension, retirement, deferred compensation, employment, severance severance, termination, change in control or other employee benefit plan, agreement, trust, plan, fund, award trust fund or other arrangement for the benefit or welfare of any officer, director, officer employee or employee consultant or (2) agree to any increase in any mannerthe compensation payable or to become payable to, or (any increase in the contractual term of employment of, any officer, director, employee or consultant, except for normal increases in the ordinary and usual course of business and generally consistent with past practice; (g) neither it nor any of its Subsidiaries will sell, lease, mortgage, encumber or otherwise dispose of or grant any interest in any of its assets or properties, except for sales, encumbrances and other dispositions or grants in the ordinary course of business and consistent with past practice that, and except for Liens for taxes not yet due or Liens that are not material in the aggregate, amount or effect and do not result in a material increase in benefits or compensation expense to impair 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 use 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)property; (h) acquire, sell, lease or dispose of any assets having an initial 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 neither it nor 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;Subsidiaries will (i1) acquire (by merger, consolidation, consolidation or acquisition of stock or assets) any Person corporation, partnership or other organization or division thereof engaged in any business (including, in particular, restaurant operations) or any equity interest therein; (ii2) enter into any Contract, contract or agreement (other than in the ordinary and usual course of business consistent with past practice, ) that would be material to WSMP; or amend in any material respect any of the Material Contracts; (iii3) authorize or make any new capital expenditure or expenditures which individually is in excess of $250,000 10,000 or which exceed, in the aggregate, aggregate in excess of $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 Investors50,000; or (iv) enter into or amend any Contract providing for the taking of any action that would be prohibited hereunder;and (li) 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 revoke any Tax election, or settle or compromise any Tax liability, or change (or make a request to any taxing authority to change) any aspect of its method of accounting for Tax purposes; (o) pay, 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 neither it nor any of its Subsidiaries is a party; (p) settle or compromise any pending or threatened suit, action or material claim or any claim relating to the Transactions; (q) will enter into any Contract agreement, commitment or arrangement that limits or otherwise restricts the Company or any of its Subsidiaries (or that couldunderstanding, 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 pay or delay payment of payables or other liabilities; or (s) take, propose to take, or agree in writing or otherwise otherwise, with respect to take, any of the actions described matters referred to in Sections 5.1(asubsections (c) through 5.1(r(h) 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 dateabove.

Conduct of Business Pending the Closing. Except as set forth in Section 5.1 of the Companies' Disclosure Schedule or as otherwise expressly contemplated by this Agreement and except for the consummation Restructuring Transaction or any of the transactions previously disclosed other Transaction Documents or as consented to by the Investors in writing (which consent shall not be unreasonably withheld) or as required by the federal Bankruptcy Code, the Amended Credit Facility or other Commitment scheduled in Section 3.12 of the Companies' Disclosure Schedule to which either of the Investors on the terms specified therein ("Permitted Transactions")Companies or any of their Subsidiaries is or shall be a party, during the period from the date hereof to of this Agreement through and including the ClosingClosing Date, none of the Company willCompanies shall, and will cause each shall not permit any of its their Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, 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 service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closing. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, neither the Company nor any of its Subsidiaries shall, without the prior written consent of the Investors: (a) amend its certificate of incorporation other than dividends and distributions by a direct or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class 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 indirect wholly owned Subsidiary to the exercise Companies or one of currently outstanding warrants and stock options disclosed on Schedule 3.02(a); their wholly owned Subsidiaries, (i) split, combine or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution dividends (whether payable in cash, stock or stock, property or otherwise) on, make any combination thereof) other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock stock, (other than dividends ii) split, combine or distributions made to the Company); (iii) make reclassify any other actual, constructive or deemed distribution in respect of any shares of its capital stock or otherwise make issue or authorize the issuance of any payments to stockholders other securities in their capacity as such respect of, in lieu of or in substitution for shares of its capital stock, or (other than dividends or distributions made to the Company); (iviii) redeempurchase, repurchase redeem or otherwise acquire any capital stock in the Companies or any of the Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (b) 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 of convertible into, exercisable for or exchangeable with, or any of its Subsidiaries; rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except as contemplated by the Forbearance Agreement, the indenture governing the Convertible Notes and Permitted Encumbrances; (vc) amend its charter, bylaws or other comparable organizational documents other than in accordance with this Agreement or amend or waive any provisions of the terms of any of its outstanding securities such as would increase its obligations thereunderTransaction Documents; (d) adopt acquire any "business", as defined in Rule 3-05(a)(2) of Regulation S-X (whether by merger, consolidation, purchase of assets or otherwise) or acquire any material equity interest in any person not an affiliate (whether through a plan purchase of complete stock, establishment of a joint venture or partial liquidation or dissolution except as set forth on Schedule 5.01(dotherwise); (e) become a party to any merger (other than a merger among wholly owned Subsidiaries the items set forth in Section 5.1(e) of the Company and no Companies' Disclosure Schedule, (i) sell, exchange or license or otherwise dispose of any of its real properties or other Persons)assets, consolidation(ii) enter into any new joint ventures or similar projects, combination(iii) enter into any new development projects other than in the ordinary course of business, recapitalization(iv) enter into any new leases or other material agreements or understandings other than in the ordinary course of business, reorganization or restructuring(v) mortgage any of its real properties or other assets except for Permitted Encumbrances; (f) change its methods of accounting, except as required by changes in GAAP; or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of the federal income tax returns for the taxable years ended December 31, 2000, except for such matters as are disclosed in Section 5.1(f) of the Companies' Disclosure Schedule, and except for future amendments of those Tax Returns to correct immaterial mistakes or as required by changes in law or regulation or as may be required in connection with the Bankruptcy Case; (g) other than through the Bankruptcy Case, effect any settlement or compromise of any pending or threatened proceeding in respect of which the Companies or the Subsidiaries are or could have been a party, unless such individual settlement (i) includes an unconditional written release of the Companies and the Subsidiaries, in form and substance reasonably 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 the Subsidiaries and (iii) involved the payment by the Companies of less than $2,000,000 (not including any payments made pursuant to or by insurance policies) individually and, when taken together with all other such individual settlements, involved payment by the Companies of less than $5,000,000 in the aggregate (not including any payments made pursuant to or by insurance policies); (h) other than the obligations for capital commitments set forth in Section 5.1(h) of the Companies' Disclosure Schedule, (i) incur or assume any long-term or short-term debt or issue any debt securitiesadditional indebtedness, except for borrowings in as contemplated by the ordinary and usual course of business consistent with past practice under Forbearance Agreement, the Existing Amended Credit Facility; Facility or any indebtedness secured by Permitted Encumbrances, or (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any 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 wholly-owned Subsidiaries of the Company; (iii) make any loans, advances or capital contributions to, or investments in, any other Person (other than to wholly-owned Subsidiaries of the Companyexcluding any Subsidiary); (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 contemplated by Law, enter into, adopt the Forbearance Agreement or amend the Amended Credit Facility 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 initial 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 wholeCompanies' customary cash management practices; (i) except as may be required as a result of a change other than the obligations for capital commitments set forth in Law or in GAAP, change any Section 5.1(i) of the accounting principles Companies' Disclosure Schedule, enter into any new capital or practices used by ittake out commitments or increase any existing capital or take out commitments; (j) revalue except as contemplated by the Amended Credit Facility, make any interest payments or other distributions on or in respect of the Public Debt; (k) except pursuant to agreements or arrangements in effect on the date hereof or as set forth on Section 5.1(k) of the Companies' Disclosure Schedule, (i) terminate the employment of any material respect any executive officer of its assets, including, without limitation, writing down the value of inventory or writing-off notes or accounts receivable Companies other than for cause, (ii) enter into any new employment agreement with any existing director or executive officer without the consent of the Investors, which consent shall not be unreasonably withheld, (iii) grant to any current or former director or executive officer of the Companies or the Subsidiaries any increase in compensation, bonus or other benefits (other than increases in base salary in the ordinary and usual course of business consistent with past practice or arising due to a promotion or other change in status and consistent with generally applicable compensation practices), (iv) grant to any such current or former director, executive officer or other employee any increase in severance or termination pay, (v) amend, adopt or terminate any employment, deferred compensation, severance, termination or indemnification agreement with any such current or former director, executive officer or employee, or (vi) amend, adopt or terminate any Plan, except as may be required by GAAPto retain qualification of any such plan under Section 401(a) of the Code; (il) acquire (by merger, consolidationexcept pursuant to agreements or arrangements set forth on Section 5.1(l) of the Companies' Disclosure Schedule, or acquisition of stock as otherwise contemplated by this Agreement, pay, loan or advance any amount to, or sell, transfer or lease any properties or assets (real, personal or mixed, tangible or intangible) to, or purchase any properties or assets) any Person , or division thereof or any equity interest therein; (ii) enter into any Contractagreement or arrangement with, any of its executive officers or directors or any affiliate (other than the Companies or their Subsidiaries) or the immediate family members or associates of any of its executive 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 and usual course of business business, in each case 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 (ivm) enter into or amend any Contract providing for the taking of any action that would be prohibited hereunder; (l) 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 a manner materially adverse to the date hereofInvestors any new agreement which has a non-competition, geographical restriction or similar covenant; (n) make amend, terminate or revoke any Tax electionotherwise modify, or settle or compromise take any Tax liability, or change (or make a request other action with respect to any taxing authority to change) any aspect Pinnacle Space Lease that results in a decrease in the Companies' revenue of its method of accounting for Tax purposes;$100,000 or more per month; or (o) pay, 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 compromise any pending or threatened suit, action or material claim or any claim relating to the Transactions; (q) 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 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 actions 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 dateforegoing actions.

Conduct of Business Pending the Closing. Except as contemplated by this Agreement NCC 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 hereof to the Closing, the Company will, each Subsidiary covenants and will cause each of its Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, 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 service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closing. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreementagrees that, prior to the ClosingClosing Date, neither the Company nor any of its Subsidiaries shall, without the prior written unless Capital shall otherwise consent of the Investorsin writing or as otherwise expressly contemplated or permitted by this Agreement: (a) amend The business of NCC and the Subsidiaries shall be conducted only in, and neither NCC nor any Subsidiary shall take any action except in, the ordinary course consistent with past practice, on an arm's-length basis and in accordance in all material respects with all applicable laws, rules and regulations and past custom and practice; and NCC and each Subsidiary shall maintain its certificate facilities in good condition and repair and in accordance with NCC's policies and procedures relating thereto as in effect prior to the execution of incorporation or bylaws (or other similar governing instrument)this Agreement; (b) authorize for issuanceNeither NCC nor any Subsidiary shall, directly or indirectly, do or permit to occur any of the following: (i) issue, sell, deliver pledge, dispose of or agree encumber (A) any additional shares of, or commit to issue, sell or deliver (whether through the issuance or granting of any options, warrants, commitments, subscriptions, conversion privileges or rights to purchase or otherwise) any stock of any class or other equity interest or kind to acquire any equity equivalents (including, without limitationshares of, any stock options or stock appreciation rights), or any other securities convertible into or exchangeable for any of its capital stock, other equity interest or equity equivalent, except for the issuance or sale of Common Stock pursuant to issuances upon the exercise of currently options or warrants outstanding warrants and stock options disclosed on Schedule 3.02(a); the date hereof, or (iB) any of its assets, except for fair value in the ordinary course of business; (ii) amend or propose to amend its articles or certificate of incorporation or bylaws; (iii) split, combine or reclassify any outstanding shares of its capital stock; (ii) stock or other securities, or declare, set aside or pay any dividend or other distribution (whether payable in cash, stock or stock, property or otherwise with respect to any combination thereof) in respect of its capital stock (other than dividends or distributions made to the Company); (iii) make any other actual, constructive or deemed distribution in respect of any shares 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)securities; (iv) redeem, repurchase purchase or otherwise acquire or offer to acquire any of its securities capital stock or other securities; (v) acquire (by merger, exchange, consolidation, acquisition of stock or assets or otherwise) any securities of corporation, partnership, joint venture or other business organization or division or material assets thereof; (vi) incur or guarantee any indebtedness for borrowed money or issue any debt securities; or (vii) enter into or propose to enter into, or modify or propose to modify, any agreement, arrangement or understanding with any party with respect to any matters whatsoever; (c) Neither NCC nor any Subsidiary shall, directly or indirectly, (i) enter into or modify any contract, agreement or understanding with any of its Subsidiariesemployees, officers, directors or consultants; (ii) enter into or modify any employment, severance or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any employees, officers, directors or consultants; or (viii) amend the terms of make any of its outstanding securities such as would increase its obligations thereundercapital expenditures, including any capitalizable lease obligations, other than those capital expenditures specifically identified on SCHEDULE 6.1(C) to this Agreement; (d) adopt a plan of complete or partial liquidation or dissolution except as set forth on Schedule 5.01(d); (e) become a party to Neither NCC nor any merger (other than a merger among wholly owned Subsidiaries of the Company and no other Persons), consolidation, combination, recapitalization, reorganization or restructuring; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings in the 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 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 wholly-owned Subsidiaries of the 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, Subsidiary shall 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 employment or other employee benefit agreementplan, trust, plan, fund, award fund or other group arrangement for the benefit or welfare of any employees or any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or arrangements for the benefit or welfare of any director; (e) NCC and each Subsidiary shall cause its current insurance (or reinsurance) policies not to be canceled or terminated or reduced in coverage amount or any of the coverage thereunder to lapse, officer unless simultaneously with such termination, cancellation, reduction in coverage amount or employee lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated, reduced or lapsed policies for substantially similar premiums are in full force and effect; (f) NCC and each Subsidiary (i) shall use its best efforts to preserve intact its assets, business organization and goodwill; (ii) shall not take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement or in any mannerother agreement or instrument executed in connection with the transactions contemplated hereby untrue at, or at any time prior to, the Closing Date; (except for normal increases iv) shall notify Capital of any emergency or other change in the ordinary and usual normal course of its business consistent with past practice that(as currently conducted) or in the operation of its properties and of any governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated) if such emergency, change, complaint, investigation or hearing would be material, individually or in the aggregate, do not result in a material increase in benefits or compensation expense to the Companybusiness, operations or financial condition of NCC and its Subsidiaries (taken as a whole) increase or to NCC's, any Subsidiary's or Capital's ability to consummate the transactions contemplated by this Agreement; and (v) shall notify Capital if NCC or any Subsidiary shall discover that any representation or warranty made by it in this Agreement was when made, or has subsequently become, untrue; (g) Neither NCC nor any manner the compensation Subsidiary shall change any of its methods of accounting or fringe benefits of accounting practices, or make 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)tax election; (h) acquire, sell, lease Neither NCC nor any Subsidiary shall waive or dispose agree to waive any applicable statute of any assets having an initial cost or fair market value in excess of $500,000 limitations or any assets which individually similar statutory or in the aggregate are material to the Company and its Subsidiaries taken as a wholejudicial doctrine benefiting NCC or any Subsidiary; (i) except as may Neither NCC nor any Subsidiary shall commence or settle any legal action or proceeding without Capital's prior written consent (such consent not to be required as a result of a change unreasonably withheld or delayed), other than claims or actions involving amounts in Law controversy not exceeding $5,000 individually or $25,000 in GAAP, change any of the accounting principles or practices used by itaggregate; (j) revalue NCC and the Subsidiaries shall cooperate with Capital in any material respect any of its assets, including, without limitation, writing down securing the value of inventory or writing-off notes or accounts receivable other than in the ordinary full 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 unconditional approval of the Material Contracts; (iii) authorize any new capital expenditure or expenditures which individually is in excess State 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 California to the Investors; or (iv) enter into or amend any Contract providing for the taking of any action that would be prohibited hereunder; (l) 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 revoke any Tax election, or settle or compromise any Tax liability, or change (or make a request to any taxing authority to change) any aspect of its method of accounting for Tax purposes; (o) pay, 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 inMerger, the consolidated financial statements other transactions contemplated hereby and the continuation, following consummation such transactions, of the Company NCC's license to conduct title insurance and its Subsidiaries or incurred escrow operations in the ordinary Alameda, Contra Costa and usual course Sonoma Counties as contemplated by Section 4.8 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 compromise any pending or threatened suit, action or material claim or any claim relating to the Transactions; (q) 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 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 actions 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 dateAgreement.

Conduct of Business Pending the Closing. Except as contemplated by this Agreement The Sell-Side Companies covenant 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 hereof to the Closing, the Company will, and will cause each of its Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent agree with past practice and, to the extent consistent therewith, 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 service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closing. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this AgreementBuyer that, prior to the Closing, neither the Company nor any of its Subsidiaries shallunless Buyer shall otherwise consent in writing, without the prior written consent of the Investorsexcept as otherwise contemplated by this Agreement: (a) The Sell-Side Companies will not cause Mom 'n' Pop's to (1) amend or restate its certificate of incorporation or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or other equity interest or any equity equivalents (including, without limitation, any stock options or stock appreciation rights)operating agreement, 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); (i2) split, combine or reclassify any shares of its capital stock; (ii) equity interests or other securities, or declare, set aside or pay any dividend or other distribution (whether on any of its equity interests or other securities, or make or agree or commit to make any exchange for or redemption of any of its equity interests or other securities payable in cash, stock or property property; (b) The Sell-Side Companies will not cause Mom 'n' Pop's to issue or agree to issue any combination thereof) equity interests in respect of its capital stock (itself, or options, warrants or other than dividends or distributions made to the Company); (iii) make any other actual, constructive or deemed distribution in respect rights of any shares of its capital stock or otherwise make any payments kind to stockholders in their capacity as such (other than dividends or distributions made to the Company); (iv) redeem, repurchase or otherwise acquire any such equity interests, whether by purchase or conversion or exchange of its securities other equity interests or other securities; (c) The Sell-Side Companies will not cause Mom 'n' Pop's to create, incur, assume or guarantee any securities indebtedness for borrowed money, except in the ordinary course of any of its Subsidiaries; or (v) amend the terms of any of its outstanding securities such as would increase its obligations thereunderbusiness and consistent with past practice; (d) adopt a plan of complete or partial liquidation or dissolution except as set forth on Schedule 5.01(d); (e) become a party The Sell-Side Companies will not cause Mom 'n' Pop's to any merger (other than a merger among wholly owned Subsidiaries of the Company and no other Persons), consolidation, combination, recapitalization, reorganization or restructuring; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings in the 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 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 wholly-owned Subsidiaries of the 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 initial 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, consolidation or acquisition of stock equity interests or assets) any Person corporation, partnership or other organization or division thereof engaged in any business or any equity interest therein; and (iie) The Sell-Side Companies will not cause Mom 'n' Pop's to enter into any Contractcontract, other than agreement, commitment or understanding, whether in the ordinary and usual course of business consistent writing or otherwise, with past practice, or amend in any material respect to any of the Material Contracts; matters referred to in subsections (iiia) 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 through (ivd) enter into or amend any Contract providing for the taking of any action that would be prohibited hereunder;above. (lf) depart from any normal drydock and maintenance practices Fresh Foods will permit Mom 'n' Pop's employees to continue to participate in its health benefit plans (but not its 401(K) 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 revoke any Tax election, or settle or compromise any Tax liability, or change (or make a request to any taxing authority to change) any aspect of its method of accounting for Tax purposes; (o) pay, 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 compromise any pending or threatened suit, action or material claim or any claim relating to the Transactions; (q) 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 Affiliatesemployee stock purchase plan) from engaging or competing in any line of business or in any geographic area; (r) change or modify its creditJuly 2, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to 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 1999 through the actions 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 dateClosing Date.

Conduct of Business Pending the Closing. (a) Except as set forth in Section 6.1 of the Company Disclosure Letter or as otherwise expressly contemplated by this Agreement and except for the consummation of the transactions previously disclosed in writing or as consented to by the Investors on the terms specified therein ("Permitted Transactions")in writing, during the period from the date hereof to of this Agreement through and including the ClosingClosing Date, the Company willCompanies and the Operating Partnerships shall, and will shall cause each of its the Subsidiaries to, conduct its operations carry on their respective businesses in the ordinary and usual course of business consistent with past practice and in compliance in all material respects with all applicable laws and regulations and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, seek shall use reasonable efforts to preserve intact its their current business organizations, seek use reasonable efforts to keep available the service services of its their current officers and other employees and seek use reasonable efforts to preserve its their relationships with customers, suppliers and others those persons having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closingthem. Without limiting the generality of the foregoing, and except as set forth in Section 6.1 of the Company Disclosure Letter or as otherwise expressly provided in contemplated by this Agreement, prior including without limitation the Restructuring Plan, or as consented to by the ClosingInvestors in writing, neither during the Company nor period from the date of this Agreement through the Closing Date, the Companies and the Operating Partnerships shall not, and shall not permit any of its the Subsidiaries shall, without the prior written consent of the Investorsto: (a) amend its certificate of incorporation or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class 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); (i) splitother than dividends and distributions by a direct or indirect wholly owned Subsidiary to the Companies or one of their wholly owned Subsidiaries, combine or reclassify any shares of its capital stock; (iiA) declare, set aside or pay any dividend or other distribution dividends (whether payable in cash, stock or stock, property or otherwise) on, make any combination thereof) other distributions in respect of, or enter into any agreement with respect to the voting of, any of its capital stock or partnership or other equity interests, (B) split, combine or reclassify any of its capital stock or partnership or other than dividends equity interests or distributions made to issue or authorize the Company); (iii) make issuance of any other actual, constructive or deemed distribution securities in respect of, in lieu of any or in substitution for shares of its capital stock or otherwise make any payments to stockholders in their capacity as such partnership or other equity interests, or (other than dividends or distributions made to the Company); (ivC) redeempurchase, repurchase redeem or otherwise acquire any capital stock or partnership or other equity interests in the Companies or any of the Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities, PROVIDED that the Companies may redeem partnership units in Patriot OP and Wyndham OP to the extent required under the applicable limited partnership agreement, provided that any such redemption is effected solely with shares of Paired Common Stock (unless otherwise agreed to in writing by the Investors); (ii) other than issuances of shares of Paired Common Stock pursuant to the terms of Paired Share Equivalents or Options (as defined in Section 6.8(a)) outstanding as of the date of this Agreement and disclosed pursuant to this Agreement, issue, deliver, sell, pledge or otherwise encumber or subject to any Lien any of its shares of capital stock or partnership or other equity interests 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; (iii) amend its certificate of incorporation, by-laws, partnership agreement or other comparable organizational documents or amend the Patriot Rights Plan; (iv) 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); (v) other than as identified in Section 6.1(a)(v) of the Company Disclosure Letter, (A) sell, lease, exchange, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its Subsidiaries; real properties or other assets, (B) enter into any new franchise agreements with the Companies or any Subsidiary as the franchisor, (C) enter into any new joint ventures or similar projects, or (vD) amend enter into any new development projects; (vi) change its methods of accounting (or underlying assumptions) in effect at December 31, 1997, except as required by changes in GAAP or law or regulation or as disclosed in the terms SEC Reports filed prior to the date of this Agreement, or change any of its outstanding securities such methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of the federal income tax returns of the Companies for the taxable years ended December 31, 1997, except as would increase its obligations thereunderrequired by changes in law or regulation; (dvii) adopt a plan of complete create, renew, amend, terminate or partial liquidation cancel, or dissolution except as set forth on Schedule 5.01(d); (e) become a party take any other action that could reasonably be expected to any merger (other than a merger among wholly owned Subsidiaries of the Company and no other Persons), consolidation, combination, recapitalization, reorganization or restructuring; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings result in the ordinary and usual course of business consistent with past practice under the Existing Credit Facility; (ii) assumecreation, guaranteerenewal, endorse amendment, termination or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations cancellation of any other Person, except in the ordinary and usual course of business consistent with past practice and in amounts not agreement or instrument that is material to the Company Companies and its Subsidiariestheir respective subsidiaries, taken as a whole, and except for guarantees of obligations of the Company or wholly-owned Subsidiaries of the 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 initial 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; (iviii) except as may be required as a result of a change in Law or in GAAP, change incur any of the accounting principles or practices used by itindebtedness for borrowed money; (jix) revalue enter into any new capital or take out commitments or increase any existing capital or take out commitments (except as set forth in any material respect any of its assets, including, without limitation, writing down the value of inventory or writing-off notes or accounts receivable Capital Expenditure Budget); (x) other than with respect to the individual previously disclosed to the Investors, but only to the extent previously approved by the Investors in writing and except as set forth on Section 3.22(a) of the Company Disclosure Letter, (A) 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 and usual course of business consistent with past practice or arising due to a promotion or other change in status and consistent with generally applicable compensation practices), (B) grant to any such current or former director, executive officer or other employee any increase in severance or termination pay, (C) amend or adopt any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or employee, (D) amend, adopt or terminate any Benefit Plan, except as may be required by GAAPto retain qualification of any such plan under Section 401(a) of the Code or (E) make any additions or changes to the Companies' senior management at the level of divisional President or higher; (ixi) acquire (except pursuant to agreements or arrangements in effect on the date hereof or as otherwise contemplated by mergerthis Agreement which have been disclosed in Section 6.1 of the Company Disclosure Letter, consolidationpay, loan or advance any amount to, or acquisition of stock sell, transfer or lease any properties or assets (real, personal or mixed, tangible or intangible) to, or purchase any properties or assets) any Person , or division thereof or any equity interest therein; (ii) enter into any Contractagreement or arrangement 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 and usual course of business business, in each case 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; (l) 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 revoke any Tax election, or settle or compromise any Tax liability, or change (or make a request to any taxing authority to change) any aspect of its method of accounting for Tax purposes; (o) pay, 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; (pxii) settle or compromise any pending or threatened suit, action or material claim (A) asserted by one or any claim relating more stockholders of the Companies or the Subsidiaries or one or more limited partners of the Operating Partnerships, (B) that involves amounts, individually in or in the aggregate, in excess of $100,000 net of insurance or (C) which relates to the Transactionstransactions contemplated by the Transaction Documents (excluding the obtaining of any consents under the Restructuring Plan); (qxiii) permit any material insurance policy naming the Companies or any Subsidiary as a beneficiary or a loss payable payee to be canceled or terminated; (xiv) enter into or amend in a manner adverse to the Investors any Contract new agreement which has a non-competition, geographical restriction 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 pay or delay payment of payables or other liabilitiessimilar covenant; or (sxv) take, propose to takeauthorize, or commit or agree in writing or otherwise to take, any of the actions described foregoing actions. (b) Without limiting the foregoing, the Companies and the Operating Partnerships shall, and shall cause the Subsidiaries to, (i) make the expenditures set forth under the caption "Maintenance Capital Expenditures" in Sections 5.1(athe Capital Expenditure Budget, and (ii) through 5.1(rimplement the performance goals in accordance with the timetable set forth in Section 5.2(g)(ii) 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 dateDisclosure Letter.

Conduct of Business Pending the Closing. Except Each Party undertakes that as from the date hereof until the earlier of either the Completion Date or the date on which this Agreement is terminated pursuant to Clause 25 it shall not, and it shall procure that its Affiliates shall not, except (x) 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 hereof to the Closing, the Company will, and will cause each of its Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, 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 service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closing. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, neither the Company nor any of its Subsidiaries shall, without Schedules or (y) with the prior written consent of the Investorsother Party: (a) amend its certificate of incorporation or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class 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); (i) splittake any action outside the ordinary course of business including inter alia enter into, combine or reclassify announce an intention to enter into, any shares transaction outside the ordinary course of its capital stock; business resulting in obligations or liabilities in excess of euro 25,000,000 in respect of KL or euro 50,000,000 in respect of AF; (ii) enter into, or announce an intention to enter into, or take an option on any transaction in the ordinary course resulting in obligations or liabilities in excess of euro 25,000,000, provided that this Clause 22 (ii) shall apply solely to KL; (iii) issue, purchase, redeem or repay, or propose the purchase, redemption or repayment of, any of its shares or issue or agree to issue any securities convertible into shares, rights, warrants or options to subscribe for or to acquire any shares or convertibles or propose the reduction, or making of any changes to any part (including share-splits), of its share capital or the share capital of any of its Affiliates, unless it concerns issuance of shares under such Party’s existing obligations; (iv) propose any amendment to its articles of association (except as contemplated in this Agreement) or amend the articles of association of any of its significant Affiliates; (v) declare, set aside make or pay any dividend or other distribution distribution, unless in accordance with its current dividend policy; (whether in cash, stock or property or any combination thereof) in respect of its capital stock (other than dividends or distributions made to the Company); (iii) make any other actual, constructive or deemed distribution in respect of any shares 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, repurchase or otherwise acquire any of its securities or any securities of any of its Subsidiaries; or (vvi) amend the terms of any employment and remuneration, of its outstanding securities such as would increase management or its obligations thereundersignificant Affiliates’ management; (dvii) adopt amend the terms of employment of its employees or its significant Affiliates’ employees in a plan manner which would not be consistent with relevant market practice or past practice on an individual and global basis; (viii) amend the pension scheme/employee benefits of complete its employees or partial liquidation any of the employees of an Affiliate, unless (i) required by law or dissolution except as set forth on Schedule 5.01(d(ii) pursuant to existing contractual arrangements (including collective labour agreements or other agreements with any union involved with it); (eix) become issue any debentures or create, extend, grant, issue or permit to subsist, or agree to create, extend or issue new Lien in excess of euro 25,000,000 in respect of KL or euro 50,000,000 in respect of AF or cause any increase in the indebtedness of such Party and its Affiliates taken as a party to whole by more than euro 25,000,000 in respect of KL or euro 50,000,000 in respect of AF, unless required in respect of any merger (other than a merger among wholly owned Subsidiaries binding agreement for the purchase of the Company aircraft and no other Persons), consolidation, combination, recapitalization, reorganization or restructuringunder existing and ongoing arrangements; (fx) (i) incur or assume grant any long-term or short-term debt or issue any debt securities, except for borrowings rights to third parties to share in the 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 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 wholly-owned Subsidiaries of the 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 initial 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; (l) 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 revoke any Tax election, or settle or compromise any Tax liability, or change (or make a request to any taxing authority to change) any aspect of its method of accounting for Tax purposes; (o) pay, 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, profits or the benefits profits of any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party; (p) settle or compromise any pending or threatened suit, action or material claim or any claim relating to the Transactions; (q) 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 pay or delay payment of payables or other liabilities; or (sxi) take, propose to takeenter into, or agree in writing or otherwise announce an intention to takeenter into, any transaction or agreement concerning or in relation to the business of Martinair N.V., provided that this Clause 22 (xi) shall apply solely to KL provided that: • AF shall inform KL prior to entering into, or taking an option on, any transaction in the actions described ordinary course resulting in Sections 5.1(a) through 5.1(r) obligations or any action which would make liabilities in excess of euro 50,000,000; • nothing in this Clause 22 or this Agreement shall prevent AF and/or any of its Affiliates from entering into any agreement, agreeing on any undertaking and more generally collaborating and/or taking part in any procedure or action that is necessary in the representations context and for the purposes of its privatisation and therefore such undertakings or warranties actions shall not constitute and/or result in a breach by AF of any of its obligations under Clause 22 and this Agreement. However, the Company contained AF Chairman shall inform the KL CEO with respect to any development relating to AF’s privatisation; • nothing in this Agreement (i) which are qualified as to materiality untrue Clause 22 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 shall prevent AF and/or any of the Investors shall use its respective commercially reasonable efforts Affiliates from entering into any agreements resulting from undertakings or commitments to cause all conditions contained in, be executed in the case context of the Companyany existing co-operation with any SkyTeam Members and therefore such agreements or undertakings shall not constitute and/or result in a breach by AF of any of its obligations under Clause 22 and this Agreement, Sections 6.02 and 6.03, and in the case of the Investors, Sections 6.01 and 6.03(b), hereof subject however to be satisfied at the earliest practicable dateClause 12.2.2.

Conduct of Business Pending the Closing. 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 TransactionsPERMITTED TRANSACTIONS"), during the period from the date hereof to the Closing, the Company will, and will cause each of its Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, 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 service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closing. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, neither the Company nor any of its Subsidiaries shall, without the prior written consent of the Investors: (a) amend its certificate of incorporation or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class 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(aSCHEDULE 3.02(A); (i) split, combine or 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 dividends or distributions made to the Company); (iii) make any other actual, constructive or deemed distribution in respect of any shares 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, repurchase or otherwise acquire any of its securities or any securities of any of its Subsidiaries; or (v) amend the terms of any of its outstanding securities such as would increase its obligations thereunder; (d) adopt a plan of complete or partial liquidation or dissolution except as set forth on Schedule 5.01(dSCHEDULE 5.01(D); (e) become a party to any merger (other than a merger among wholly owned Subsidiaries of the Company and no other Persons), consolidation, combination, recapitalization, reorganization or restructuring; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings in the 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 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 wholly-owned Subsidiaries of the 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(gSCHEDULE 5.01(G); (h) acquire, sell, lease or dispose of any assets having an initial 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; (l) 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 revoke any Tax election, or settle or compromise any Tax liability, or change (or make a request to any taxing authority to change) any aspect of its method of accounting for Tax purposes; (o) pay, 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 compromise any pending or threatened suit, action or material claim or any claim relating to the Transactions; (q) 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 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 actions described in Sections 5.1(aSECTIONS 5.1(A) through 5.1(r5.1(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 SECTIONS 6.02 and 6.03, and in the case of the Investors, Sections SECTIONS 6.01 and 6.03(b6.03(B), hereof to be satisfied at the earliest practicable date.

Conduct of Business Pending the Closing. (a) Except as otherwise contemplated by this Agreement and except for or with the consummation prior consent of the transactions previously disclosed in writing to the Investors on the terms specified therein Parent ("Permitted Transactions"which consent will not be unreasonably withheld or delayed), during the period from the date hereof to and through the ClosingClosing Date, the Company will, shall and will shall cause each of its Subsidiaries to, to conduct its operations their respective businesses in the ordinary and usual course of business consistent with past practice andbusiness, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, seek to preserve intact its current the present business organizationsoperations, seek to keep available the service of its current officers organization and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closing. Without limiting the generality of the foregoingCompany and its Subsidiaries. (b) Except as otherwise contemplated or permitted by this Agreement or as set forth on Schedule 5.1(b), since October 31, 2007 the Company has not, and except as otherwise expressly provided in this Agreement, prior to the Closing, neither the Company nor any of its Subsidiaries shall, without the prior written consent of the Investors: Parent (a) amend its certificate of incorporation which consent will not be unreasonably withheld or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or other equity interest or any equity equivalents (including, without limitation, any stock options or stock appreciation rightsdelayed), 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 prior to the exercise Closing Date the Company shall not, and shall not permit any of currently outstanding warrants and stock options disclosed on Schedule 3.02(a);its Subsidiaries to: (i) split, combine or reclassify any shares of its capital stock; (ii) declare, set aside aside, make or pay any dividend or other distribution (whether in cash, stock cash or property or any combination thereofotherwise) in respect of its capital stock (other than dividends of the Company or distributions made to the Company); (iii) make any other actualrepurchase, constructive or deemed distribution in respect of any shares 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, repurchase redeem or otherwise acquire any of its securities outstanding shares of the capital stock or any securities of any of its Subsidiaries; convertible into or (v) amend the terms of any of its outstanding securities such as would increase its obligations thereunder; (d) adopt a plan of complete exchangeable or partial liquidation or dissolution except as set forth on Schedule 5.01(d); (e) become a party to any merger (other than a merger among wholly owned Subsidiaries of the Company and no other Persons), consolidation, combination, recapitalization, reorganization or restructuring; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except exercisable for borrowings in the 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 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 wholly-owned Subsidiaries of the 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 any of its Subsidiaries; ; (ii) except pursuant to the due exercise of any of the Warrants, issue, sell or dispose of any shares of capital stock or other securities of the Company or any of its Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of its Subsidiaries; (iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company or any of its Subsidiaries; (iv) amend the Organizational Documents of the Company or any of its Subsidiaries; (v) mortgage or pledge grant any increases in the compensation of any of its material assetscurrent or former directors, tangible officers or intangible, employees; pay or create or suffer agree 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 pay to any director, officer or employee, whether past or present, any pension, retirement allowance or other employee in benefit not required by any mannerof the Company’s existing Employee Benefit Plans; enter into any new, or (except for normal increases in the ordinary and usual course of business consistent amend any existing, employment or severance or termination agreement 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 employee; become obligated under any Employee Benefit Plan which was not in existence or pay approved by the Board of Directors of the Company prior to October 31, 2007; or amend any benefit not Employee Benefit Plan in existence on October 31, 2007 or increase the benefits thereunder except to the extent required by or necessary to comply with applicable Law; (vi) except for the incurrence of trade accounts payable and accrued expenses in the ordinary course of business, borrow money or become the guarantor, surety, endorser or otherwise liable for any plan and arrangement as in effect as debt, obligation or liability of any other Person; (vii) loan or advance any funds to any Person; (viii) subject any of the date hereof properties or assets (whether tangible or intangible) of the Company or any of its Subsidiaries to any Encumbrance, except for Encumbrances arising in the ordinary course of business or by operation of Law; (ix) sell, assign, transfer, convey, license, lease or otherwise dispose of any of the properties or assets (including, without limitation, the granting Intellectual Property) 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 initial 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 assetsSubsidiaries, including, without limitation, writing down the value of inventory or writing-off notes or accounts receivable in each case other than in the ordinary and usual course of business consistent with past practice or as required by GAAPbusiness; (ix) acquire (by merger, consolidation, or acquisition of stock any properties 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(including the repair or replacement of assets), or amend in any material respect any of the Material Contracts; make or enter into commitments for capital expenditures; (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 (ivxi) enter into or amend any Contract providing for labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the taking Company or any of any action that would be prohibited hereunderits Subsidiaries; (lxii) depart from any normal drydock and maintenance practices change its fiscal year or discontinue replacement methods of spares in operating its fleetaccounting, except as required by GAAP applied on a basis consistent with past practice; (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; (nxiii) make or revoke any election concerning Taxes or Tax election, or settle or compromise any Tax liability, Returns or change (its Tax reporting principles, methods or make a request to any taxing authority to change) any aspect policies, unless required by law or by its auditors consistent with the past practice of its method of accounting for Tax purposesthe Company; (oxiv) payenter into any transaction with any Related Party; (xv) enter into any merger or consolidation with any Person; (xvi) cease making accruals for taxes, discharge or satisfy any material claimsobsolete inventory, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), vacation and 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 customary accruals 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 partybusiness; (pxvii) settle or compromise any pending or threatened suitreplace, action or material claim or any claim relating to the Transactions; (q) enter into any Contract or arrangement that limits amend or otherwise restricts the Company modify (other than any decrease in amount) any loans or any letters of its Subsidiaries (or that could, after the Closing, limit or restrict the Company or any of its Affiliates) from engaging or competing credit currently 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 pay or delay payment of payables or other liabilitiesplace; or (sxviii) take, propose agree to take, or agree in writing or otherwise to take, do any of the actions described in Sections 5.1(aforegoing. (c) through 5.1(r) Since October 31, 2007 the Company has not, and the Company shall not, and shall cause its Subsidiaries not to, amend any Material Contract 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 Material Lease in any material respect. In addition, except respect or enter into any Material Contract or any Material Lease other than in circumstances in which the duties ordinary course of the parties hereto under this Agreement are specifically described herein, business; provided that the Company shall simultaneously (or as promptly as reasonably practicable thereafter) provide written notice and each of the Investors shall use its respective commercially reasonable efforts to cause all conditions contained in, a copy (in the case of an amendment, a copy as amended) of such Material Contract or Material Lease to Parent. (d) Reference is made to that certain Shareholder Agreement respecting Maverick Engineering, Inc. dated as of December 1, 2002 among the Company, Sections 6.02 Company and 6.03, its shareholders (“Shareholder Agreement”). The Company and in not fewer than two-thirds of its Stockholders shall cause such Shareholder Agreement to be terminated without liability or obligation on the case part of the Investors, Sections 6.01 and 6.03(b), hereof to be satisfied at Company effective as of the earliest practicable dateClosing in accordance with the provisions of Section 12.3(a) thereof.

Conduct of Business Pending the Closing. Except Each Party undertakes that as from the date hereof until the earlier of either the Completion Date or the date on which this Agreement is terminated pursuant to Clause 25 it shall not, and it shall procure that its Affiliates shall not, except (x) 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 hereof to the Closing, the Company will, and will cause each of its Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, 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 service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closing. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, neither the Company nor any of its Subsidiaries shall, without Schedules or (y) with the prior written consent of the Investorsother Party: (a) amend its certificate of incorporation or bylaws (or other similar governing instrument); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class 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); (i) splittake any action outside the ordinary course of business including inter alia enter into, combine or reclassify announce an intention to enter into, any shares transaction outside the ordinary course of its capital stock; business resulting in obligations or liabilities in excess of euro 25,000,000 in respect of KL or euro 50,000,000 in respect of AF; (ii) enter into, or announce an intention to enter into, or take an option on any transaction in the ordinary course resulting in obligations or liabilities in excess of euro 25,000,000, provided that this Clause 22 (ii) shall apply solely to KL; (iii) issue, purchase, redeem or repay, or propose the purchase, redemption or repayment of, any of its shares or issue or agree to issue any securities convertible into shares, rights, warrants or options to subscribe for or to acquire any shares or convertibles or propose the reduction, or making of any changes to any part (including share-splits), of its share capital or the share capital of any of its Affiliates, unless it concerns issuance of shares under such Party’s existing obligations; (iv) propose any amendment to its articles of association (except as contemplated in this Agreement) or amend the articles of association of any of its significant Affiliates; (v) declare, set aside make or pay any dividend or other distribution distribution, unless in accordance with its current dividend policy; (whether in cash, stock or property or any combination thereof) in respect of its capital stock (other than dividends or distributions made to the Company); (iii) make any other actual, constructive or deemed distribution in respect of any shares 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, repurchase or otherwise acquire any of its securities or any securities of any of its Subsidiaries; or (vvi) amend the terms of any employment and remuneration, of its outstanding securities such as would increase management or its obligations thereundersignificant Affiliates’ management; (dvii) adopt amend the terms of employment of its employees or its significant Affiliates’ employees in a plan manner which would not be consistent with relevant market practice or past practice on an individual and global basis; (viii) amend the pension scheme/employee benefits of complete its employees or partial liquidation any of the employees of an Affiliate, unless (i) required by law or dissolution except as set forth on Schedule 5.01(d(ii) pursuant to existing contractual arrangements (including collective labour agreements or other agreements with any union involved with it); (eix) become issue any debentures or create, extend, grant, issue or permit to subsist, or agree to create, extend or issue new Lien in excess of euro 25,000,000 in respect of KL or euro 50,000,000 in respect of AF or cause any increase in the indebtedness of such Party and its Affiliates taken as a party to whole by more than euro 25,000,000 in respect of KL or euro 50,000,000 in respect of AF, unless required in respect of any merger (other than a merger among wholly owned Subsidiaries binding agreement for the purchase of the Company aircraft and no other Persons), consolidation, combination, recapitalization, reorganization or restructuringunder existing and ongoing arrangements; (fx) grant any rights to third parties to share in its profits or the profits of any of its Affiliates; or (ixi) incur enter into, or assume announce an intention to enter into, any long-term transaction or short-term debt agreement concerning or issue in relation to the business of Martinair N.V., provided that this Clause 22 (xi) shall apply solely to KL provided that: • AF shall inform KL prior to entering into, or taking an option on, any debt securities, except for borrowings transaction in the ordinary and usual course resulting in obligations or liabilities in excess of business consistent with past practice under the Existing Credit Facilityeuro 50,000,000; (ii) assume, guarantee, endorse • nothing in this Clause 22 or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any 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 wholly-owned Subsidiaries of the 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 this Agreement shall prevent AF and/or any of its material assets, tangible or intangible, or create or suffer to exist Affiliates from entering into 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 agreeing on any undertaking and more generally collaborating and/or taking part in any procedure or other employee benefit agreement, trust, plan, fund, award or other arrangement action that is necessary in the context and for the benefit purposes of its privatisation and therefore such undertakings 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 actions shall not constitute and/or result in a material increase in benefits or compensation expense to the Company) increase in any manner the compensation or fringe benefits breach by AF of any director, officer or employee or pay any benefit not required by any plan of its obligations under Clause 22 and arrangement as in effect as of the date hereof (including, without limitationthis Agreement. However, the granting AF Chairman shall inform the KL CEO with respect to any development relating to AF’s privatisation; • nothing in this Clause 22 or this Agreement shall prevent AF and/or any of stock appreciation rights its Affiliates from entering into any agreements resulting from undertakings or performance units) except as set forth on Schedule 5.01(g); (h) acquire, sell, lease or dispose commitments to be executed in the context of any assets having an initial cost existing co-operation with any SkyTeam Members and therefore such agreements or fair market value undertakings shall not constitute and/or result in excess a breach by AF of $500,000 or any assets which individually or of its obligations under Clause 22 and this Agreement, subject however to Clause 12.2.2. 23.1 AF and KL shall co-ordinate and co-operate in the aggregate are material to the Company and its Subsidiaries taken as a whole;connection with: (i) except as may be required as a result of a change in Law or in GAAP, change any the preparation of the accounting principles or practices used by itInformation Documents; (jii) revalue determining whether any action by or in respect of, or filing with, any Governmental Authority is required, or any actions, consents, authorisations, approvals or waivers are required to be obtained from parties to any material respect any of its assetscontracts, including, without limitation, writing down in connection with 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 consummation of the Material Contractstransactions contemplated by this Agreement; and (iii) authorize seeking any new capital expenditure such action, consent, authorisation, approval or expenditures which individually is waiver or making any such filing, furnishing information required 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; (l) 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 revoke any Tax election, or settle or compromise any Tax liability, or change (or make a request to any taxing authority to change) any aspect of its method of accounting for Tax purposes; (o) pay, 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 compromise any pending or threatened suit, action or material claim or any claim relating to the Transactions; (q) 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 connection therewith or in connection with the Information Documents and timely seeking to obtain any geographic area; (r) change such action, consent, authorisation, approval 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 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 actions 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 datewaiver.

Conduct of Business Pending the Closing. Except as contemplated by this Agreement TBA covenants 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 hereof to the Closing, the Company will, and will cause each of its Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, 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 service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closing. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreementagrees that, prior to the Closing, neither the Company nor any of its Subsidiaries shall, without the prior written consent of the Investorsunless Vail shall otherwise agree in writing or as otherwise expressly contemplated or permitted by this Agreement: (a) amend Each of VAB and Manager shall conduct its certificate business and operations, including its cash management practices, the collection of incorporation or bylaws (or other similar governing instrument)receivables, maintenance of facilities, payment of payables, and performance under Contracts only in the usual and ordinary course of business and consistent with past custom and practice in all material respects; (b) authorize for issuance, issue, VAB and Manager shall not directly or indirectly do any of the following: (i) sell, deliver pledge, dispose of or agree or commit to issue, sell or deliver (whether through the issuance or granting encumber any material portion of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class 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 equivalentits assets, except for in the issuance ordinary course of business; (ii) amend or sale of Common Stock pursuant propose to the exercise of currently outstanding warrants and stock options disclosed on Schedule 3.02(a); amend its charter or bylaws; (iiii) split, combine or reclassify any outstanding shares of its capital stock; (ii) , or declare, set aside or pay any dividend or other distribution (whether payable in cash, stock or stock, property or any combination thereof) in otherwise with respect to shares of its capital stock provided, however, each of VAB and Manager shall be allowed to distribute cash with respect to shares of its capital stock in an amount equal to one hundred percent (other than dividends or 100%) of its net income for the period beginning January 1, 1998 and ending on the Closing Date, provided further that the amount of such distribution may in no event exceed the amount of contributions made by TBA to VAB and Manager during such period, and provided further, neither TBA nor Manager have made nor shall make any distributions made to TBA for the Company)period beginning May 31, 1998 and ending on the Closing Date; (iiiiv) make any other actualredeem, constructive purchase or deemed distribution in respect of acquire or offer to acquire any shares of its capital stock or otherwise make other securities; (v) create any payments subsidiaries; (vi) pay any fee to stockholders TBA or its affiliates; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the matters set forth in their capacity as such this Section 4.1(b); (c) Neither VAB nor Manager shall (i) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional shares of, or any options, warrants, conversion privileges or rights of any kind to acquire any shares of, its capital; (ii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other than dividends business organization or distributions made division or material assets thereof; (iii) incur any indebtedness for borrowed money, issue any debt securities or guarantee any indebtedness to the Company)others; or (iv) redeementer into or modify any contract, repurchase agreement, commitment or otherwise acquire arrangement with respect to any of its securities or any securities of any of its Subsidiaries; or (v) amend the terms of any of its outstanding securities such as would increase its obligations thereunderforegoing; (d) adopt a plan of complete or partial liquidation or dissolution Neither VAB nor Manager shall, except as set forth contemplated in Section 4.1(b) hereof (i) enter into or modify any employment, severance or similar agreements or arrangements with, or grant any bonus, salary increase, severance or termination pay to any officer or director of either VAB or Manager; or (ii) with respect to their respective employees, take any action other than in the ordinary course of business and consistent in all material respects with past practice (none of which shall be unreasonable or unusual) with respect to the grant of any bonuses, salary increases, severance or termination pay or with respect to any increase of benefits payable in effect on Schedule 5.01(d)January 1, 1998; (e) become a party to any merger (other than a merger among wholly owned Subsidiaries of the Company and no other Persons), consolidation, combination, recapitalization, reorganization or restructuring; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings in the 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 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 wholly-owned Subsidiaries of the 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, Neither VAB nor Manager shall 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 employment or other employee benefit plan, agreement, trust, plan, fund, award fund 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)employee; (hf) acquire, sell, lease or dispose Each of any assets having an initial cost or fair market value in excess of $500,000 or any assets which individually or in the aggregate are material to the Company VAB 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; (l) 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 revoke any Tax election, or settle or compromise any Tax liability, or change (or make a request to any taxing authority to change) any aspect of its method of accounting for Tax purposes; (o) pay, 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 compromise any pending or threatened suit, action or material claim or any claim relating to the Transactions; (q) 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 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 actions 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 Manager shall use its respective commercially reasonable efforts to cause all conditions contained in, in the case its current insurance (or reinsurance) policies not to be cancelled or terminated or any of the Companycoverage thereunder to lapse, Sections 6.02 unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and 6.03reinsurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect; (g) Each of VAB and Manager shall (i) use commercially reasonable efforts to preserve intact its business organization and goodwill, keep in full force and effect all material rights, contracts, licenses, permits and franchises relating to its business, keep available the case services of its employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it; (ii) report on a regular and frequent basis, at reasonable times, to representatives of Vail regarding operational matters and the Investorsgeneral status of ongoing operations; (iii) use commercially reasonable efforts not to take any action which would render, Sections 6.01 and 6.03(b)or which reasonably may be expected to render, hereof any representation or warranty made in this Agreement untrue in any material respect at any time prior to be satisfied at the earliest practicable date.Closing Date if then made; and