Common use of Conduct of Business Prior to the Closing Clause in Contracts

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, none of the Pershing Companies shall conduct its business other than in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller shall cause each of the Pershing Companies to (i) use its reasonable efforts to (A) preserve intact its business organization and (B) preserve its current relationships with its customers and other persons with which it has significant business relationships; (ii) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any leases or subleases that by their terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.13; and (iv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable. (b) Except as described in Section 5.01(b) of the Disclosure Schedule, the Seller covenants and agrees that, prior to the Closing, without the prior written consent of the Purchaser, not to be unreasonably withheld, the Company will not do any of the things enumerated in the second sentence of Section 3.11.

Conduct of Business Prior to the Closing. (a) The Seller covenants Company and agrees the Stockholders covenant and agree that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, none of neither the Pershing Companies Company nor any Subsidiary shall conduct its business other than in the ordinary course and consistent with the past practicepractice of the Company or such Subsidiary. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller Company shall and shall cause each of the Pershing Companies Subsidiary to (i) continue its advertising and promotional activities, and pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable best efforts to (A) preserve intact its business organizations and the business organization of the Business, (B) keep available to the Purchaser the services of the employees of the Company and each Subsidiary, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Company, each Subsidiary and the Business and (BD) preserve its current relationships with its customers customers, suppliers and other persons with which it has significant business relationships; (iiiv) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 3.20(b) of the Disclosure Schedule that by their its terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.13; and (ivv) not engage in any practice, take any action, fail to take any action or enter into any transaction which that could cause any representation or warranty of the Seller Company or any Stockholder to be untrue in any material respect (or in the case of any representation or and warranty that is qualified as to materiality, that could cause such representation or warranty to be untrue in any respect) or result in a breach of any covenant made by the Seller Company or any Stockholder in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable. (b) Except as described in Section 5.01(b) of the Disclosure Schedule, the Seller covenants Company and agrees the Stockholders covenant and agree that, prior to the Closing, without the prior written consent of the Purchaser, not to be unreasonably withheld, neither the Company nor any Subsidiary will not do any of the things enumerated in the second sentence of Section 3.113.14 (including, without limitation, clauses (a) through (aa) thereof); provided that, the Company and the Subsidiaries may issue purchase orders or otherwise agree to make any purchases in the ordinary course of business to customers and in amounts consistent with past practice to satisfy customer orders or future business. (c) Between the date hereof and the Closing, the Company shall promptly make available to the Purchaser copies of, and permit the Purchaser to copy, (i) each material purchase order issued by the Company or any Subsidiary and (ii) each sales order.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, none of the Pershing Companies shall conduct its business other than in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller shall cause each of the Pershing Companies to (i) use its reasonable efforts to (A) preserve intact its business organization and (B) preserve its current relationships with its customers and other persons with which it has significant business relationships; (ii) exercise, but only after notice to the Purchaser and receipt of the Purchaser's ’s prior written approval, any rights of renewal pursuant to the terms of any leases or subleases that by their terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.13; and (iv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable. (b) Except as described in Section 5.01(b) of the Disclosure Schedule, the Seller covenants and agrees that, prior to the Closing, without the prior written consent of the Purchaser, not to be unreasonably withheld, the Company will not do any of the things enumerated in the second sentence of Section 3.11.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees thatFrom the date hereof until the Closing or termination of this Agreement, except as described provided in Section 5.01(aSchedule 4.01(a) of the Disclosure ScheduleSchedules or otherwise provided in this Agreement or consented to in writing by Buyer (which consent shall not be unreasonably conditioned, between withheld or delayed) and except as required by applicable Law, Seller shall, and shall cause the date hereof Company and each of its Subsidiaries to, (x) conduct the time business of the Closing, none of the Pershing Companies shall conduct Company and its business other than Subsidiaries in the ordinary course and of business consistent with past practice; and (y) use reasonable best efforts to preserve intact the current operations, organization, business and goodwill of the Company and its Subsidiaries and to preserve the rights, goodwill and relationships of their respective employees, customers, lenders, suppliers, and regulators. Without limiting the foregoing, from the date hereof until the Closing Date or termination of this Agreement, Seller shall: (i) cause the Company and each Subsidiary to preserve all of its material Permits and all of its Franchise Agreements; (ii) cause the Company and each Subsidiary to pay their respective debts, Taxes and other obligations when due; (iii) except for planned demolitions and in progress construction, cause the Company and each Subsidiary to maintain the properties and assets owned, operated or used by the Company or the Subsidiary in the same condition in all material respects as they were on the date of this Agreement, subject to reasonable wear and tear; (iv) cause the Company and each Subsidiary to continue in full force and effect without material modification all Insurance Policies, except as required by applicable Law; (v) cause the Company and each Subsidiary to perform in all material respects all of its obligations under all Material Contracts relating to or affecting their respective properties, assets or business; (vi) cause the Company and each Subsidiary to maintain its books and records in accordance with past practice and continue to collect accounts receivable and pay accounts payable utilizing procedures consistent with past practices; (vii) cause the Company and each Subsidiary to not violate any applicable Laws or Franchise Agreements; and (viii) cause the Company and each Subsidiary not to take or permit any action that would knowingly cause any of the changes, events or conditions described in Section 2.08 to occur. (b) Without limiting the generality of the foregoing, except as described provided in Section 5.01(aSchedule 4.01(b) of the Disclosure Schedule, the Seller shall cause each of the Pershing Companies to (i) use its reasonable efforts to (A) preserve intact its business organization and (B) preserve its current relationships with its customers and other persons with which it has significant business relationships; (ii) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any leases Schedules or subleases that by their terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.13; and (iv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller provided in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable. (b) Except as described in Section 5.01(b) of the Disclosure Schedule, the Seller covenants and agrees that, prior to the Closing, without Agreement or with the prior written consent of the Purchaser, Buyer in writing (which consent shall not to be unreasonably withheldconditioned, withheld or delayed) and except as required by applicable Law, Seller, the Company will and each Subsidiary shall not, and Seller shall not do permit the Company or any Subsidiary to: (i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of, or other equity interests in, the Company or any Subsidiary; (ii) transfer, issue, sell, pledge, encumber or dispose of any shares of capital stock or other securities of, or other equity interests in, the Company or any Subsidiary or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of, or other equity interests in, the Company or any Subsidiary; (iii) effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of the Company or any Subsidiary, or amend the terms of any outstanding securities of the Company or any Subsidiary; (iv) amend the certificate of incorporation or bylaws or equivalent organizational or governing documents of the Company or any Subsidiary; (v) except as set forth in Schedule 4.01(b)(v) of the Disclosure Schedules (A) increase the salary or other compensation of any director, officer or employee of the Company or any Subsidiary, except in the ordinary course of business, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any director, officer, employee or consultant, (C) increase the coverage or benefits available under any (or create any new) Benefit Plan or otherwise modify or amend or terminate any such Benefit Plan except in the ordinary course of business, or (D) enter into any employment, deferred compensation, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company or any Subsidiary (or amend any such agreement to which the Company or any Subsidiary is a party), except in the ordinary course of business; (vi) except as set forth in Schedule 4.01(b)(vi) of the Disclosure Schedules (A) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any indebtedness, except in the ordinary course of business; (B) pay, repay, discharge, purchase, repurchase or satisfy any indebtedness of the Company or any Subsidiary, except in the ordinary course of business; (C) modify the terms of any indebtedness or other Liability in any material aspect; or (D) default under any indebtedness of the Company or any Subsidiary; in each case (A) - (C) above, except for any such transactions between the Company and a Subsidiary of the Company or between Subsidiaries of the Company in the ordinary course of business, and except as provided in Section 6.01(m) (Payoff Letters); (vii) subject to any Encumbrance except Permitted Encumbrances or otherwise encumber, any of the things enumerated material properties or assets (whether tangible or intangible) of the Company or any Subsidiary ; (viii) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization or alter the corporate structure of the Company or any Subsidiary; (ix) except as set forth in Schedule 4.01(b)(ix) of the Disclosure Schedules, acquire any dealerships or material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of, or used by, the Company or any Subsidiary, other than in the second sentence ordinary course of business; (x) enter into or agree to enter into any merger or consolidation with any Person, and not engage in any material new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities, of any other Person other than the Company and its Subsidiaries; (xi) except in the ordinary course of business, cancel or compromise any debt or claim or waive or release any material right of the Company or any Subsidiary except for the payment, discharge, settlement or satisfaction of liabilities (1) in accordance with their terms, (2) not in excess of $1,000,000 and (3) disclosed, reflected or reserved against in the Financial Statements; (xii) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any Subsidiary; (xiii) except as set forth in Schedule 4.01(b)(xiii) of the Disclosure Schedules, introduce any material change with respect to the operation of the Company or its Subsidiaries as a whole involving any material change in the types, nature, composition or quality of its products or services, or, other than in the ordinary course of business, make any material change in product prices or terms of distributions of such products or materially change its pricing, discount, allowance or return policies or grant any material pricing, discount, allowance or return terms for any customer or supplier not in accordance with such policies except for policies sponsored or endorsed by any Manufacturer; (xiv) except as set forth in Schedule 4.01(b)(xiv) of the Disclosure Schedules, enter into any material transaction or enter into, modify or renew any Contract which by reason of its size, nature or otherwise is not in the ordinary course of business except for the renewal of Franchise Agreements and framework agreements in the ordinary course of business; (xv) except for transfers of cash pursuant to normal cash management practices in the ordinary course of business, make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any Contract with Seller; (xvi) make a change in its accounting or Tax reporting principles, methods or policies; (xvii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Company or any Subsidiary to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xviii) enter into any material new lines of business; (xix) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Material Contract or (B) Permit; (xx) settle or compromise any pending or threatened Action or any claim or claims for, or that would result in a loss of revenue of, an amount that could reasonably be expected to be greater than $1,000,000 in the aggregate; (xxi) except in the ordinary course of business, materially change or modify its credit, collection or payment policies, procedures or practices, including receivables factoring (with or without recourse) or acceleration of collections of receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xxii) take any action that would materially adversely affect the ability of Seller, the Company or any Subsidiary to complete the transactions contemplated by this Agreement; or (xxiii) agree to do anything (A) prohibited by this Section 3.114.01(b), (B) which makes any of the representations and warranties of Seller in any of the Seller Transaction Documents untrue or incorrect or that would reasonably be expected to result in any of the conditions to the Closing not being satisfied or (C) that would be reasonably expected to have a Company Material Adverse Effect.

Conduct of Business Prior to the Closing. (a) The Seller covenants shall cause the Company to conduct its business in the ordinary course consistent with past practices, and agrees thatuse reasonable best efforts to maintain and preserve intact the current organization and to preserve the rights, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having business relationships with the Company. Without limiting the foregoing, Seller shall: (1) cause Company to preserve and maintain all of its Permits; (2) cause Company to pay its debts, Taxes and other obligations when due; (3) cause Company to maintain its assets in accordance with past practices; (4) cause the Company to continue in full force and effect without modification all Insurance Policies, except as described required by applicable Law; (5) cause the Company to perform all of its obligations under its material contracts; (6) cause the Company to maintain its books and records in Section 5.01(aaccordance with past practice; (7) cause the Company to comply in all material respects with all applicable Laws; (8) cause the Company to not increase the compensation, bonus, commissions or fee arrangements payable or to become payable by the Company to its employees, except in the ordinary course of business; (9) cause the Disclosure ScheduleCompany to not enter into, between amend, modify or terminate any new or existing Material Contract (including, without limitation, agreements obligating the date hereof and the time of the Closing, none of the Pershing Companies shall conduct its business Company to pay capitalized expenses) other than in the ordinary course and of business consistent with past practice. Without limiting practices; (10) cause the generality Company to not incur any additional Indebtedness or accrue any additional liabilities other than trade indebtedness incurred in the ordinary course of business consistent with past practices; (11) cause the foregoingCompany to not acquire, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller shall cause each of the Pershing Companies to (i) use its reasonable efforts to (A) preserve intact its business organization and (B) preserve its current relationships with its customers and other persons with which it has significant business relationships; (ii) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms lease or dispose of any leases equipment (other than in the ordinary course of business); (12) Not make any settlement of or subleases that by their terms would otherwise expire; (iii) not shorten compromise any Tax liability, change any Tax election or lengthen the customary payment cycles for Tax method of accounting or make any new Tax election or adopt any new Tax method of its payables or receivables, except as required pursuant to Section 5.13; and (iv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and accounting without the consent of Buyer, which consent shall not be unreasonably withheld or conditioned; (13) Not make any material changes to any the Purchaser, cause to be distributed to Seller any cash from Company benefit plans or materially increase the accounts Liabilities of the Pershing Companies as it deems desirable.Company thereunder; (b14) Except as described provided in Section 5.01(b) of the Disclosure Schedulethis Agreement, not make any distributions to the Seller covenants and agrees that, prior to from the Closing, without the prior written consent of the Purchaser, not to be unreasonably withheld, the Company will not do any of the things enumerated in the second sentence of Section 3.11Company.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, none of the Pershing Companies Company shall not conduct its business other than in the ordinary course and consistent with past practiceOrdinary Course of Business. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller shall cause each of the Pershing Companies Company to (i) use its reasonable best efforts to (A) preserve intact its business organization organization, (B) keep available to the Purchaser the services of its employees, and (BC) preserve its current relationships with its customers and other persons with which it has significant business relationships; (ii) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any leases or subleases that by their terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.135.14; and (iv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement; providedPROVIDED, howeverHOWEVER, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies Company as it deems desirable. (b) Except as described in Section 5.01(b) of the Disclosure Schedule, the Seller covenants and agrees that, prior to the Closing, without the prior written consent of the Purchaser, not to be unreasonably withheld, the Company will not do any of the things enumerated in the second sentence of Section 3.113.10. (c) Effective upon the Closing, the Seller will cause any and all Intellectual Property agreements between the Company and its Affiliates that are inconsistent with the rights to be granted to the Company under the Ancillary Agreements to be terminated.

Conduct of Business Prior to the Closing. (a) The Seller Each Seller, jointly and severally, covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between from the date hereof and until the earlier of the time of the ClosingClosing and the termination of this Agreement pursuant to Article X, none of it will cause the Pershing Acquired Companies shall and Subsidiaries to conduct its their business other than in the ordinary course and consistent with past prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller Sellers shall cause the Acquired Companies and each of the Pershing Companies Subsidiary to (i) use its reasonable efforts to (A) preserve intact its business organization continue their advertising and (B) preserve its current relationships promotional activities, and pricing and purchasing policies, in accordance with its customers and other persons with which it has significant business relationshipspast practice; (ii) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any leases or subleases that by their terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its their payables or receivables, ; (iii) use their reasonable efforts to (A) preserve intact their business organizations and the business organization of their Business except as required contemplated by the Restructuring Transactions, (B) keep available to the Purchaser the services of the employees of each Acquired Company and Subsidiary in the ordinary course and consistent with prior practice (other than any resignation or any termination for cause of any such employee), (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of each Acquired Company and Subsidiary and their Business, and (D) preserve their current relationships with their customers, suppliers and other persons with which they have had significant business relationships; (iv) exercise any rights of renewal pursuant to the terms of any of the leases or subleases set forth in Section 5.133.18(b) of the Disclosure Schedule which by their terms would otherwise expire; and (ivv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller Sellers to be untrue in any material respect or result in a material breach of any covenant made by the Seller Sellers in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable. (b) Except as described in Section 5.01(b) of the Disclosure ScheduleSchedule (those intercompany transactions listed under the heading “Restructuring Transactions” in such Section 5.01(b) of the Disclosure Schedule are referred to herein as the “Restructuring Transactions”), the Seller each Seller, jointly and severally, covenants and agrees that, prior from the date hereof until the earlier of the time of the Closing and the termination of this Agreement pursuant to the ClosingArticle X, without the prior written consent of the Purchaser, Purchaser (not to be unreasonably withheld, conditioned or delayed), none of the Company Acquired Companies or Subsidiaries will not do any of the things enumerated specified in the second sentence of Section 3.113.12. (c) At or prior to the Closing, Quanta shall cause Sunesys, LLC (“Sunesys”) to enter into an agreement with Dycom, its Affiliate or an Acquired Company pursuant to which Sunesys, on behalf of itself and its successors and assigns, commits to retain such party to provide, consistent in the amount historically provided, those telecom engineering, construction and maintenance services historically performed by the Acquired Companies prior to the Closing and that are required by Sunesys during the four year period subsequent to the Closing, on terms substantially similar to the terms upon which the Acquired Companies historically performed such services for Sunesys. In addition, at or prior to the Closing, Quanta shall cause Sunesys to transfer to Blair Park Services, LLC the employees named on Section 5.01(c) of the Disclosure Schedule.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Seller's Disclosure Schedule, between the date hereof and the time of the Closing, none of the Pershing Companies Company shall conduct its business other than in the ordinary course and consistent with past the Company's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Seller's Disclosure Schedule, as requested by the Seller Purchaser, or as required to accommodate changes in the Purchaser's business practices, the Company shall cause each of the Pershing Companies to (i) continue its advertising and promotional activities, and pricing and purchasing policies, including capital purchasing, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its all reasonable efforts to (A) preserve intact its business organization organization,(B) cause the employees of the Seller which on the date of this Agreement are seconded to the Company to be employees of the Company as of the Closing Date or such other date to be agreed upon among the Seller, the Purchaser and the Company and (BC) preserve its current relationships with its customers customers, suppliers and other persons with which it has significant business relationships; (iiiv) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any of the material leases or subleases that which by their terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.13; : and (ivv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable.. 36 29 (b) Except as described in Section 5.01(b) of the Seller's Disclosure Schedule, the Seller covenants and agrees that, prior to the Closing, without the prior written consent of the Purchaser, not to be unreasonably withheld, the Company will not do any of the things enumerated in the second sentence of Section 3.113.08 (including, without limitation, clauses (i) through (xix) thereof); provided, however, that if the Company desires to take any of the actions enumerated in Section 3.08(v) in response to general industry conditions, the Company shall provide written notice of the proposed actions to the Purchaser and the Purchaser shall respond to such written notice not more than two Business Days after the receipt thereof.

Conduct of Business Prior to the Closing. (a) The Seller covenants Sellers covenant and agrees agree that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, none of the Pershing Companies Company nor any Subsidiary shall conduct its business other than in the ordinary course and consistent with past the Company's and such Subsidiary's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller Sellers shall cause the Company and each of the Pershing Companies Subsidiary to (i) continue its advertising and promotional activities, and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable best efforts to (A) preserve intact its their business organizations and the business organization of the Business, (B) keep available to the Purchaser the services of the employees of the Company and each Subsidiary, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Company, each Subsidiary and the Business and (BD) preserve its current relationships with its customers customers, suppliers and other persons with which it has significant business relationships; (iiiv) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any of the leases or subleases that set forth in Section 3.19(b) of the Disclosure Schedule which by their terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.13; and (ivv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller Sellers to be untrue or result in a breach of any covenant made by the Seller Sellers in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable. (b) Except as described in Section 5.01(b) of the Disclosure Schedule, the Seller covenants Sellers covenant and agrees agree that, prior to the Closing, without the prior written consent of the Purchaser, not to be unreasonably withheld, neither the Company nor any Subsidiary will not do any of the things enumerated in the second sentence of Section 3.113.12 (including, without limitation, clauses (i) through (xxviii) thereof). (c) For the period from the date hereof through the time of the Closing, the Sellers covenant and agree to cause the Company and each Subsidiary to maintain the level, mix and quality of the Inventories consistent with past practice.

Conduct of Business Prior to the Closing. (a) The Seller covenants Sellers covenant and agrees agree that, except as described in Section 5.01(a4.02(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, none of the Pershing Companies Sellers shall cause the Corporation and the Subsidiary to conduct its business other than the Business in the ordinary course and consistent with past their respective prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a4.02(a) of the Disclosure Schedule, the Seller Sellers shall cause each of the Pershing Companies Corporation and the Subsidiary to (i) use its reasonable efforts to conduct the Business and operate the assets and properties used in conducting the Business in the ordinary course of business consistent with past practice, (Aii) preserve intact its the business organization and of the Business, (Biii) keep the services of their respective employees, (iv) preserve its current relationships with its the customers and suppliers of the Business and other persons with which it has they have had significant business relationships; (ii) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any leases or subleases that by their terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.13; and (ivv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller Sellers to be untrue or result in a breach of any covenant made by the Seller Sellers in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable. (b) Except as described in Section 5.01(b4.02(b) of the Disclosure Schedule, the Seller covenants Sellers covenant and agrees agree that, prior to between the date hereof and the time of the Closing, without the prior written consent of the Purchaser, not to be unreasonably withheldthe Sellers, the Company will not do any of the things enumerated specified in the second sentence of Section 3.112.07. (c) Prior to Closing, the Sellers shall not, directly or indirectly, take any actions, or cause the Corporation or the Subsidiary to take any actions, with the purpose of making any Earn-Out Payment more likely to be required to be paid hereunder where such Earn-Out Payment would not otherwise be required to be paid in the ordinary course of business.

Conduct of Business Prior to the Closing. (a) The Seller covenants Sellers covenant and agrees agree that, except as described in Section 5.01(a6.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, none of the Pershing Companies Sellers shall cause the Company not to conduct its business other than in the ordinary course and consistent with past the Company's prior practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a6.01(a) of the Disclosure Schedule, the Seller Sellers shall cause each of the Pershing Companies Company to (i) continue its pricing and purchasing policies, in accordance with past practice; (ii) not shorten or lengthen the customary payment cycles for any of its payables or receivables; (iii) use its reasonable best efforts to (A) preserve intact its business organization organization, (B) keep available to the Purchaser the services of the employees of the Company, (C) continue in full force and effect without material modification all existing policies or binders of insurance currently maintained in respect of the Company and the Business and (BD) preserve its current relationships with its customers customers, suppliers and other persons with which it has significant business relationships; (iiiv) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any of the leases or subleases that set forth in Section 3.18(b) of the Disclosure Schedule which by their terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.13; and (ivv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of any of the Seller Sellers to be untrue or result in a breach of any covenant made by the Seller Sellers in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable. (b) Except as described in Section 5.01(b6.01(b) of the Disclosure Schedule, the Seller covenants Sellers covenant and agrees agree that, prior to the Closing, without the prior written consent of the Purchaser, not to be unreasonably withheld, none of the Sellers will cause the Company will not to do any of the things enumerated in the second sentence of Section 3.113.11 (including, without limitation, clauses (i) through (xxx) thereof).

Conduct of Business Prior to the Closing. (a) The Seller NPC covenants and agrees that, without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), except as described in Section 5.01(a) 6.01 of the Disclosure ScheduleSchedule or contemplated, permitted or required by this Agreement, between the date hereof execution and the time delivery of this Agreement and the Closing, none it shall and, each of the Pershing Companies shall Sellers agrees to cause NPC and its Subsidiaries to (a) conduct its business other than in the ordinary course and consistent with past practice. Without limiting the generality of the foregoingin all material respects, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller shall cause each of the Pershing Companies to (ib) use its commercially reasonable efforts to (A) preserve intact its intact, in all material respects, the business organization of NPC and its Subsidiaries, (c) use its commercially reasonable efforts to continue their respective marketing and promotional activities, and purchasing and pricing policies, and (Bd) use its commercially reasonable efforts to preserve the goodwill associated with NPC and its current Subsidiaries, including preserving their respective relationships with its material customers and other persons with which it has significant business relationships; (ii) exercise, but only after notice to the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any leases or subleases that by their terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.13; and (iv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable. (b) suppliers. Except as described in Section 5.01(b) 6.01 of the Disclosure ScheduleSchedule or expressly contemplated, the Seller permitted or required by this Agreement, NPC covenants and agrees thatthat it shall not, prior and shall cause each of its Subsidiaries not to, and each of the Sellers agrees to cause NPC and its Subsidiaries not to, between the execution and delivery of this Agreement and the Closing, without the prior written consent of the Purchaser, Purchaser (which consent shall not to be unreasonably withheld, delayed or conditioned), (i) take, omit to take or authorize any actions that, if taken between the Company will not do any date of the things enumerated in Interim Balance Sheet and the second sentence date of Section 3.11.this Agreement,

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time of the Closing, none of the Pershing Companies shall conduct its business other than in the ordinary course and consistent with past practice. Without limiting the generality of the foregoing, except as described in Section 5.01(a) of the Disclosure Schedule, the Seller shall cause each of the Pershing Companies to (i) use its reasonable efforts to (A) preserve intact its business organization and (B) preserve its current relationships with its customers and other persons with which it has significant business relationships; (ii) exercise, but only after notice to the Purchaser and receipt of the Purchaser's ’s prior written approval, any rights of renewal pursuant to the terms of any leases or subleases that by their terms would otherwise expire; (iii) not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.13; and (iv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable. (b) Except as described in Section 5.01(b) of the Disclosure Schedule, the Seller covenants and agrees that, prior to the Closing, without the prior written consent of the Back to Contents Purchaser, not to be unreasonably withheld, the Company will not do any of the things enumerated in the second sentence of Section 3.11.

Conduct of Business Prior to the Closing. (a) The Seller covenants and agrees that, except as described in Section 5.01(a) of the Disclosure Schedule, between the date hereof and the time Closing Date, it will not permit any of the Closing, none members of the Pershing Companies shall board of directors of the Company designated by it to vote in a manner inconsistent with prior practice or outside of the normal course of business with respect to the conduct of the Company’s business, including, without limitation (i) its business employees, (ii) its properties, (iii) its Material Contracts, (iv) complying in all material respects with all applicable Laws, including, without limitation, payment (or causing payment to be made) of all Taxes with respect to the Company for any taxable period ending on or before the Closing Date (other than taxes not due or being contested in good faith for which adequate reserves have been made), relationships of the ordinary course Company with having significant business relations therewith and consistent with past practice(vi) except for any of the matters set forth on Section 3.07 of the Disclosure Schedule, the Listed Licenses; however, that no action by the Purchaser under the Management Agreement shall be deemed to be a violation of, or result the breach of any of these provisions by the Seller long as such action is not a result of any direct instruction of the Seller. Without limiting the generality of the foregoingprovisions of subsection (a), except as described for actions contemplated by this Agreement or previously approved in Section 5.01(a) of the Disclosure Schedule, the Seller shall cause each of the Pershing Companies to (i) use its reasonable efforts to (A) preserve intact its business organization and (B) preserve its current relationships with its customers and other persons with which it has significant business relationships; (ii) exercise, but only after notice to writing by the Purchaser and receipt of the Purchaser's prior written approval, any rights of renewal pursuant to the terms of any leases or subleases that by their terms would otherwise expire; (iii) such approval not shorten or lengthen the customary payment cycles for any of its payables or receivables, except as required pursuant to Section 5.13; and (iv) not engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Seller to be untrue or result in a breach of any covenant made by the Seller in this Agreement; provided, however, that prior to the Closing, subject to the provisions of Section 2.06, the Seller may, in its sole discretion and without the consent of the Purchaser, cause to be distributed to Seller any cash from the accounts of the Pershing Companies as it deems desirable. (b) Except as described in Section 5.01(b) of the Disclosure Scheduleunreasonably withheld), the Seller covenants and agrees that, prior the date hereof and the Closing Date, it will cause the members of the board of directors designated by it not to vote in favor of any action which would result in the Company: (i) amending its organizational documents; (ii) granting or revoking special and general powers of attorney other than in the ordinary course of business; except with to a Sale of the Company under the Sale Agreement, selling, leasing, transfemng, mortgaging, encumbering or otherwise disposing of all or substantially all of its properties or assets in one transaction or liens granted to the Closing, without the prior written consent of the Purchaser, not to be unreasonably withheld, the Company will not do any of the things enumerated lenders participating in the second sentence of Section 3.11.Project Financing Facility);