Common use of Conduct of Seller’s Business Clause in Contracts

Conduct of Seller’s Business. Since the Balance Sheet Date, except as disclosed on SCHEDULE 5.12 or as contemplated by this Agreement there has not been any: (a) sale or transfer of, or any agreement to sell or transfer, any assets of the Business, or any plan, agreement or arrangement granting any preferential right to purchase or acquire any interest in any of the assets of the Business, or requiring consent of any Person to the transfer and assignment of any of the assets of the Business; (b) sale or transfer of any motor vehicle, attachment, accessory or piece of materials handling equipment comprising rolling stock of the Business from the Business to any other business operation of Seller Parent or its Affiliates, other than in the ordinary course of business consistent with the past practice of the Business; (c) waiver of any material rights or claims of Sellers, the Partnership or Seller Parent related to the assets of the Business; (d) material breach, amendment or termination of any contract, agreement or other instrument to which Sellers, the Partnership or Seller Parent is a party and by which the respective assets of Seller Parent, the Partnership or Sellers are affected or bound or loss of any material customer of the Business; (e) transaction by Seller Parent, the Partnership or Sellers outside the ordinary course of business with respect to the assets of the Business or the Business; (f) change in the pricing and purchasing policies of Sellers, the Partnership with respect to the Business, other than in the ordinary course of business consistent with the past practice of the Business; (g) change in the customary payment cycles for any of Sellers' or the Partnership's payables or receivables with respect to the Business; (h) change in any method of accounting or accounting policies or policy used by Seller Parent, the Partnership or Sellers, except as required by Applicable Law or by the Financial Accounting Standards Board; (i) change in the customary methods of operation of the Business; (j) change or increase in any compensation payable to, or benefits made available to, any Business Employees, except (i) to the extent required by Applicable Law, or (ii) pursuant to a collective bargaining agreement, or (iii) in the ordinary course of business consistent with past practice; or (k) action by Sellers, the Partnership Seller Parent, or any employee, officer or agent of Sellers, the Partnership or Seller Parent committing to do any of the foregoing.

Conduct of Seller’s Business. Since From and after the Balance Sheet date of this Agreement and until the Closing Date, except as disclosed on SCHEDULE 5.12 or as contemplated by this Agreement there has not been anySeller agrees that: (a) sale or transfer ofSeller shall maintain, or any agreement to sell or transferoperate and administer the Purchased Assets utilizing prudent oilfield practices, any assets of the Business, or any plan, agreement or arrangement granting any preferential right to purchase or acquire any interest in any of the assets of the Business, or requiring consent of any Person to the transfer and assignment of any of the assets of the Business; (b) sale or transfer of any motor vehicle, attachment, accessory or piece of materials handling equipment comprising rolling stock of the Business from the Business to any other business operation of Seller Parent or its Affiliates, other than in the ordinary course of business and consistent with the past practice of the Businessand in compliance with all applicable Laws and Regulations; (cb) waiver of any material rights or claims of Sellers, the Partnership or Seller Parent related to the assets of the Business;shall: (di) material breachnot, amendment except as set forth on Schedule 4.1(m), agree to, approve or termination of incur any contractauthorizations for expenditure, agreement cost or other instrument to which Sellers, the Partnership or Seller Parent is a party and by which the respective assets of Seller Parent, the Partnership or Sellers are affected or bound or loss of any material customer of the Business; (e) transaction by Seller Parent, the Partnership or Sellers outside the ordinary course of business obligation for commitments with respect to the assets any individual Purchased Well or Purchased Lease in excess of $25,000. (ii) not sell, assign, transfer or lease or agree to sell, assign, transfer, lease or otherwise dispose of any of the Business or the Business; Purchased Assets, except for (fA) change in the pricing sales and purchasing policies dispositions of Sellers, the Partnership with respect to the Business, other than oil and gas in the ordinary course of business consistent with the past practice and (B) sales and dispositions of the Businessequipment and materials that are surplus, obsolete or replaced; (giii) change in the customary payment cycles for not subject any of Sellers' or the Partnership's payables or receivables with respect Purchased Assets to the Businessany Lien (other than a Permitted Lien); (hiv) change in not modify, amend, extend or terminate any method of accounting Purchased Lease, Purchased Easement or accounting policies or policy used by Seller Parent, the Partnership or Sellers, except as required by Applicable Law or by the Financial Accounting Standards BoardPurchased Contract; (iv) change in the customary methods of operation of the Businessnot waive, compromise or settle any material rights under any Purchased Lease, Purchased Easement or Purchased Contract; (jvi) change maintain insurance coverage on the Purchased Assets in the amounts and of the types currently in force; (vii) use commercially reasonable efforts to maintain in full force and effect all Purchased Leases associated with Purchased Xxxxx that are capable of producing in paying quantities; and (viii) maintain all Purchased Permits. Buyer’s approval of any action restricted by this Section 6.3 shall not be unreasonably withheld or increase delayed and shall be considered granted 10 days (unless a shorter time is reasonably required by the circumstances and such shorter time is specified in any compensation payable to, or benefits made available to, any Business Employees, except (iSeller’s notice) of Seller’s notice to Buyer requesting such consent unless Buyer notifies Seller to the extent required by Applicable Lawcontrary during that period. Notwithstanding the foregoing provisions of this Section 6.3, or (ii) pursuant to a collective bargaining agreement, or (iii) in the ordinary course event of business consistent with past practice; or (k) an emergency, Seller may take such action by Sellers, the Partnership Seller Parent, or any employee, officer or agent as reasonably necessary and shall notify Buyer of Sellers, the Partnership or Seller Parent committing to do any of the foregoingsuch action promptly thereafter.

Conduct of Seller’s Business. Since Unless Buyer’s prior consent is obtained (which consent shall not be unreasonably withheld or delayed), from the Balance Sheet DateEffective Date until the Closing or termination of this Agreement, whichever first occurs, Seller shall operate and conduct its business diligently and only in the ordinary course, consistent with past practices and not make any material change in its methods of accounting (except as disclosed on SCHEDULE 5.12 required by GAAP or as contemplated by this Agreement there has required hereunder), management, marketing or operations. In furtherance thereof, unless Buyer’s prior consent to do otherwise is obtained (which consent shall not been anybe unreasonably withheld or delayed), Seller shall: (a) sale or transfer of, or obtain approval from Buyer prior to undertaking any agreement to sell or transfer, any assets new material business opportunity outside the ordinary course of the Business, or any plan, agreement or arrangement granting any preferential right to purchase or acquire any interest in any of the assets of the Business, or requiring consent of any Person to the transfer and assignment of any of the assets of the Businessbusiness; (b) sale confer at the request of Buyer with one or transfer more designated representatives of Buyer to report material operational matters and to report the general status of ongoing business operations; (c) notify Buyer of any motor vehiclegovernmental complaints, attachmentinvestigations or hearings (or communications indicating that the same may be contemplated), accessory adjudicatory proceedings or piece submissions involving any property or other assets of materials handling equipment comprising rolling Seller; (d) except as contemplated by this Agreement, confer with Buyer prior to (i) entering into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any current or former director, officer or employee of Seller except as contemplated herein, (ii) increasing compensation, bonus or other benefits payable or otherwise made available to current or former directors, officers or employees of Seller (other than in the ordinary course of business salary increases for employees other than officers and directors), (iii) declaring or paying any bonuses or year-end payments to any current or former directors, officers or employees of Seller, or (iv) establishing, adopting, or amending (except as required by applicable law), any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer or employee of Seller; (e) except in the ordinary course of business and consistent with past practices, not (i) create or incur any indebtedness, or (ii) release or create any Encumbrance of any nature whatsoever; (f) write-off or write-down any assets of Seller, other than in the normal course of business; (g) not make any changes in its accounting methods or practices or revalue its assets, except for (i) those changes required by GAAP, and (ii) changes in its tax accounting methods or practices that may be necessitated by changes in applicable Tax laws; (h) not sell or otherwise dispose of any material asset or make any material commitment relating to its assets other than in the ordinary course of business or enter into or terminate any lease of real property other than in the ordinary course of business; (i) not transfer or license to any Person or otherwise extend, amend or modify any rights to the Business from the Business to any other business operation Intellectual Property Rights of Seller Parent or its AffiliatesSeller, other than in the ordinary course of business consistent with the past practice of the Businesspractice; (cj) waiver of not (i) enter into any material rights or claims of Sellers, the Partnership or Seller Parent related to the assets of the Business; (d) material breach, amendment or termination of any contract, agreement or other instrument to which Sellers, the Partnership or Seller Parent is a party and by which the respective assets of Seller Parent, the Partnership or Sellers are affected or bound or loss of any material customer of the Business; (e) transaction by Seller Parent, the Partnership or Sellers outside the ordinary course of business with respect to the assets of the Business or the Business; (f) change in the pricing and purchasing policies of Sellers, the Partnership with respect to the Businessnew Material Contract, other than in the ordinary course of business consistent with the past practice of the Business; (g) change in the customary payment cycles for any of Sellers' or the Partnership's payables or receivables with respect to the Business; (h) change in any method of accounting or accounting policies or policy used by Seller Parent, the Partnership or Sellers, except as required by Applicable Law or by the Financial Accounting Standards Board; (i) change in the customary methods of operation of the Business; (j) change or increase in any compensation payable to, or benefits made available to, any Business Employees, except (i) to the extent required by Applicable Lawpractices, or (ii) pursuant to a collective bargaining agreement, or (iii) except in the ordinary course of business consistent with past practiceor as contemplated by this Agreement, Materially modify, amend or terminate any Material Contract to which Seller is a party or waive, release, or assign any material rights or claims thereunder, in any such case in a manner that may cause a Material Adverse Effect on Buyer; (k) not enter into or propose to enter into an agreement providing for the possible acquisition by Seller or any of its subsidiaries (by way of merger, purchase of capital stock, purchase of assets or otherwise) of any material portion of the capital stock or assets of another entity; (l) not take any actions that could reasonably be expected to result in a Material Adverse Effect on the Business; or (km) action by Sellersauthorize any of, or commit or agree to take any of, the Partnership Seller Parent, or any employee, officer or agent of Sellers, the Partnership or Seller Parent committing to do any of the foregoingforegoing actions.

Conduct of Seller’s Business. Since From and after the Balance Sheet date of this Agreement and until the Closing Date, except Seller agrees, unless specifically waived by Buyer in writing, as disclosed on SCHEDULE 5.12 or as contemplated by this Agreement there has not been anyfollows: (a) sale or transfer ofSubject to the provisions of applicable operating and other agreements, Seller shall cause (■) to operate, maintain and administer the Assets in a good and workmanlike manner, consistent with its past practices as a reasonably prudent operator and shall maintain, or any agreement cause to sell or transferbe maintained, any assets of the Business, or any plan, agreement or arrangement granting any preferential right to purchase or acquire any interest in any of the assets of the Business, or requiring consent of any Person existing insurance with respect to the transfer and assignment of any of the assets of the BusinessAssets; (b) sale Except for emergency action taken in the face of risk to life, property or transfer of any motor vehicle, attachment, accessory or piece of materials handling equipment comprising rolling stock the environment (in which case Seller shall promptly notify Buyer of the Business from cause, the Business amount expended and contracts and commitments relating to any other business operation same), Seller shall submit to Buyer for prior written approval, which approval shall not be unreasonably withheld, all requests for capital expenditures and all proposed new contracts and agreements relating to the Assets that involve individual commitments of Seller Parent or its Affiliatesmore than Seventy-five Thousand Dollars ($75,000.00), other than in the ordinary course of business consistent with the past practice of the Businessnet to Seller’s interest; (c) waiver Seller will not sell, farmout, encumber or dispose of any material of the Assets, except pursuant to existing preferential purchase rights or claims of Sellers, the Partnership or Seller Parent related that are exercised prior to the assets of the BusinessClosing; (d) material breach, amendment or termination of any contract, agreement or other instrument to which Sellers, the Partnership or Seller Parent is a party and by which the respective assets of Seller Parent, the Partnership or Sellers are affected or bound or loss of will not enter into any material customer new contract affecting the Assets or modify, amend in any material respect or terminate any Lease or existing Contract or enter into any new sales contracts or supply contracts with a term of the Businessmore than thirty (30) calendar days; (e) transaction by Seller Parentwill not settle any claim, the Partnership action or Sellers outside the ordinary course of business with respect proceeding relating to the assets Assets that is in excess of the Business or the BusinessSeventy-five Thousand Dollars ($75,000.00), net to Seller’s interest, without Buyer’s written consent, which consent shall be timely and shall not be unreasonably withheld; (f) change Seller will not plug any Well capable of production of Products in the pricing and purchasing policies of Sellers, the Partnership with respect to the Business, other than in the ordinary course of business consistent with the past practice of the Business;commercial quantities; and (g) change Buyer acknowledges that Seller owns an undivided interest in certain of the customary payment cycles for Assets, and Buyer agrees that the acts or omissions of the other working interest owners who are not affiliated with Seller shall not constitute a violation of the provisions of this Section 4.05, nor shall any of Sellers' or the Partnership's payables or receivables with respect to the Business; (h) change in any method of accounting or accounting policies or policy used by Seller Parent, the Partnership or Sellers, except as action required by Applicable Law or by a vote of working interest owners constitute such a violation so long as Seller has voted its interest in a manner that complies with the Financial Accounting Standards Board; (i) change in the customary methods provisions of operation of the Business; (j) change or increase in any compensation payable to, or benefits made available to, any Business Employees, except (i) to the extent required by Applicable Law, or (ii) pursuant to a collective bargaining agreement, or (iii) in the ordinary course of business consistent with past practice; or (k) action by Sellers, the Partnership Seller Parent, or any employee, officer or agent of Sellers, the Partnership or Seller Parent committing to do any of the foregoingthis Section 4.05 and Section 4.07.

Conduct of Seller’s Business. Since Section 4.1. Conduct of Business Prior to Closing. From and after December 31, 2001 and pending the Balance Sheet DateClosing, Seller and Shareholder covenant and agree that except as disclosed on SCHEDULE 5.12 or as contemplated by this Agreement there has not been any:set forth in Schedule 4.1: ------------ (a) sale or transfer of, or any agreement to sell or transfer, any assets Seller's Business has been and will be conducted only in the ordinary and usual course of the its Business, or any plan, agreement or arrangement granting any preferential right to including normal commitments for the purchase or acquire any interest in any of supplies and services and the assets sale of the Business, or requiring consent of any Person to the transfer goods and assignment of any of the assets of the Businessservices; (b) sale no contract requiring payments by or transfer to Seller in excess of $20,000 in any motor vehicle, attachment, accessory annual period has been or piece will be entered into by or on behalf of materials handling equipment comprising rolling stock of the Business from the Business to any other business operation of Seller Parent or its AffiliatesSeller, other than in the ordinary and usual course of business consistent with the past practice of the its Business; (c) waiver Seller has not made and will not make any bonuses or salary or wage increases nor any contributions to any profit-sharing or pension plan, other than in the ordinary and usual course of any material rights or claims of Sellers, the Partnership or Seller Parent related to the assets of the its Business; (d) material breachSeller has used and will use good faith efforts to preserve Seller's business organization intact, amendment or termination to keep available the services of any contractpresent employees and to preserve Seller's reputation and goodwill and its relationship with its suppliers, agreement or other instrument to which Sellerscustomers, the Partnership or Seller Parent is a party and by which the respective assets of Seller Parent, the Partnership or Sellers are affected or bound or loss of any material customer of the Businessothers having relationships with it; (e) transaction no reorganization, declaration, setting aside or payment of any dividend or other distribution in respect of any of Seller's capital stock, or any direct or indirect redemption, purchase, or other acquisition of any such stock has been or will be effected by Seller Parent, the Partnership or Sellers outside the ordinary course of business with respect to the assets of the Business or the BusinessShareholders; (f) change Seller has not paid, loaned or advanced and will not pay, loan or advance, any amounts to any Shareholder or any member of a Shareholder's family, except as disclosed in this Agreement or a schedule attached hereto; (g) Seller has not entered into and will not enter into any agreement or arrangement with any Shareholder or any member of a Shareholder's family, except as disclosed in this Agreement or a schedule attached hereto. (h) Seller has not sold or leased and will not sell or lease any of its assets or properties, tangible or intangible, except in the pricing ordinary course of its business; (i) Seller has not and purchasing policies will not grant a new security interest in or otherwise encumber in any manner any of Sellers, the Partnership with respect to the Business, other than its assets or properties; (j) Seller has not incurred and will not incur any indebtedness for borrowed money except in the ordinary course of business consistent with the past practice of the Business; (g) change in the customary payment cycles for any of Sellers' or the Partnership's payables or receivables with respect to the Business; (h) change in any method of accounting or accounting policies or policy used by Seller Parent, the Partnership or Sellers, except as required by Applicable Law or by the Financial Accounting Standards Board; (i) change in the customary methods of operation of the Business; (j) change or increase in any compensation payable to, or benefits made available to, any Business Employees, except (i) to the extent required by Applicable Law, or (ii) pursuant to a collective bargaining agreement, or (iii) credit agreement listed in the ordinary course of business consistent with past practiceSchedule 5.13; orand (k) action by Sellers, Seller has maintained and will maintain the Partnership Seller Parent, or any employee, officer or agent of Sellers, the Partnership or Seller Parent committing to do any of the foregoingAssets in good condition and repair and adequately insured.

Conduct of Seller’s Business. Since 4.1 Conduct of Business Prior to Closing. From and after September 30, 2001, and pending the Balance Sheet DateClosing, Seller and Shareholder covenant and agree that except as disclosed on SCHEDULE 5.12 or as contemplated by this Agreement there has not been anyset forth in Schedule 4.1: (a) Seller's Business has been conducted only in the ordinary and usual course, including normal commitments for the purchase of supplies and the sale or transfer of, or any agreement to sell or transfer, any assets of the Business, or any plan, agreement or arrangement granting any preferential right to purchase or acquire any interest in any of the assets of the Business, or requiring consent of any Person to the transfer goods and assignment of any of the assets of the Businessservices; (b) sale No material contract has been entered into by or transfer on behalf of any motor vehicle, attachment, accessory or piece of materials handling equipment comprising rolling stock of the Business from the Business to any other business operation of Seller Parent or its AffiliatesSeller, other than in the ordinary course of business consistent with the past practice of the Businessbusiness; (c) waiver of Seller has not made any material rights bonuses or claims of Sellers, the Partnership salary or Seller Parent related wage increases nor any contributions to the assets of the Businessany profit-sharing or pension plan; (d) material breach, amendment or termination of any contract, agreement or other instrument Seller and Shareholder have used their best efforts to which Sellers, maintain the Partnership or Seller Parent is a party and by which the respective assets Business of Seller Parentand its customers, Assets and operations as an ongoing business in accordance with past practices and in accordance with commercially reasonable business practices, to keep available the Partnership or Sellers are affected or bound or loss services of any material customer Seller's present employees and to preserve Seller's reputation and goodwill and the goodwill of the BusinessSeller's suppliers, customers, and others having relations with Seller; (e) transaction No reorganization, declaration, setting aside or payment of any dividend or other distribution in respect of any of Seller's capital stock, or any direct or indirect redemption, purchase, or other acquisition of any such stock has been effected by Seller Parent, the Partnership or Sellers outside the ordinary course any of business with respect to the assets of the Business or the Businessits shareholders; (f) change Seller has not paid, loaned or advanced any amounts to any of its shareholders or any member of a shareholder's family, except as disclosed in this Agreement or a schedule attached hereto; (g) Seller has not entered into any agreement or arrangement with any of its shareholders or any member of a shareholder's family, except as disclosed in this Agreement or a schedule attached hereto. (h) Seller has not sold, leased or disposed of any of its Assets or properties, tangible or intangible, except in the pricing and purchasing policies ordinary course of Sellers, the Partnership with respect to the Business, other than its business; (i) Seller has not granted a security interest in or otherwise encumbered in any manner any of its assets or properties; (j) Seller has not incurred any indebtedness or borrowed any funds except in the ordinary course of business consistent with the past practice of the Business; (g) change in the customary payment cycles for any of Sellers' or the Partnership's payables or receivables with respect to the Business; (h) change in any method of accounting or accounting policies or policy used by Seller Parent, the Partnership or Sellers, except as required by Applicable Law or by the Financial Accounting Standards Board; (i) change in the customary methods of operation of the Business; (j) change or increase in any compensation payable to, or benefits made available to, any Business Employees, except (i) to the extent required by Applicable Law, or (ii) pursuant to existing lines of credit listed in Schedule 5.1.10 in a collective bargaining agreementmanner, or (iii) and in the ordinary course of business consistent amounts, in keeping with past practicehistorical practices; orand (k) action by Sellers, Seller has maintained the Partnership Seller Parent, or any employee, officer or agent of Sellers, the Partnership or Seller Parent committing to do any of the foregoingAssets in good condition and repair and adequately insured.

Conduct of Seller’s Business. Since 4.1 Conduct of Business Prior to Closing. From and after December 31, 1996 and pending the Balance Sheet DateClosing, Seller and Shareholders covenant and agree that except as disclosed on SCHEDULE 5.12 set forth in Schedule 4.1 or as contemplated by this Agreement there has not been anywith the prior written consent of Purchaser: (a) Seller's Business has been and will be conducted only in the ordinary and usual course, including normal commitments for the purchase of supplies and the sale or transfer of, or any agreement to sell or transfer, any assets of the Business, or any plan, agreement or arrangement granting any preferential right to purchase or acquire any interest in any of the assets of the Business, or requiring consent of any Person to the transfer goods and assignment of any of the assets of the Businessservices; (b) sale no material contract has been or transfer will be entered into by or on behalf of any motor vehicle, attachment, accessory or piece of materials handling equipment comprising rolling stock of the Business from the Business to any other business operation of Seller Parent or its AffiliatesSeller, other than in the ordinary course of business consistent with the past practice of the Businessbusiness; (c) waiver of Seller has not made and will not make any material rights bonuses or claims of Sellers, the Partnership salary or Seller Parent related wage increases nor any contributions to the assets of the Businessany profit-sharing or pension plan; (d) material breachSeller and Shareholders have used and will use their best efforts to preserve Seller's business organization intact, amendment or termination and their commercially reasonable efforts to keep available the services of any contractpresent employees and to preserve Seller's reputation and goodwill and the goodwill of Seller's suppliers, agreement or other instrument to which Sellerscustomers, the Partnership or Seller Parent is a party and by which the respective assets of Seller Parent, the Partnership or Sellers are affected or bound or loss of any material customer of the Businessothers having business relations with Seller; (e) transaction no reorganization, declaration, setting aside or payment of any dividend or other distribution in respect of any of Seller's capital stock, or any direct or indirect redemption, purchase, or other acquisition of any such stock has been or will be effected by Seller Parent, the Partnership or Sellers outside the ordinary course of business with respect to the assets of the Business or the BusinessSeller; (f) change in the pricing Seller has not paid, loaned or advanced and purchasing policies will not pay, loan or advance, any amounts to any Shareholder or any member of Sellersa Shareholder's family, the Partnership with respect except salary and expense reimbursement payments made to the Business, other than Collen in the ordinary course of business consistent with the past practice and except as dxxxxxxed in this Agreement or a schedule attached hereto; provided, however, Seller may make payments to Beard for Seller's prorated share of corporate insurance anx xxxloyee benefit costs and expenses properly attributable to Seller as of the BusinessClosing Date. Seller shall provide details of such payments to Purchaser prior to Closing; (g) change Seller has not entered into and will not enter into any agreement or arrangement with any Shareholder or any member of a Shareholder's family, except as disclosed in the customary payment cycles for any of Sellers' this Agreement or the Partnership's payables or receivables with respect to the Businessa schedule attached hereto; (h) change in Seller has not sold or leased and will not sell or lease any method of accounting its assets or accounting policies properties, tangible or policy used by Seller Parent, the Partnership or Sellersintangible, except as required by Applicable Law or by in the Financial Accounting Standards Boardordinary course of its business; (i) change Seller has not and will not grant a security interest in the customary methods or otherwise encumber in any manner any of operation of the Businessits assets or properties; (j) change or increase in Seller has not incurred and will not incur any compensation payable to, or benefits made available to, any Business Employees, indebtedness for borrowed money except (i) to the extent required by Applicable Law, or (ii) pursuant to a collective bargaining agreement, or (iii) in the ordinary course of business consistent with past practice; orpursuant to a credit agreement listed in Schedule 5.1.11; (k) action Seller has maintained and will maintain the Assets in good condition and repair, normal wear and tear excepted, and adequately insured; and (l) Other than those described in Schedule 4.1, Seller has not made and will not make any capital additions in excess of $10,000.Nothing in this Section 4.1 shall require Seller to reduce indebtedness for borrowed money owed to third parties other than such reductions as are required by Sellersthe instruments evidencing such indebtedness; provided, however, that any proceeds from the Partnership Seller Parent, or any employee, officer or agent sale of Sellers, fixed assets in the Partnership or Seller Parent committing ordinary course of business shall be applied to do any of reduce such indebtedness over and above the foregoingnormal required reductions referred to above.

Conduct of Seller’s Business. Since From the Balance Sheet Effective Date and until the Closing Date, Seller shall conduct its business in the usual and ordinary course of business consistent with past practice, except as disclosed on SCHEDULE 5.12 or consented to in writing by the Buyer. Without limiting the generality of the foregoing, and without derogating from any other obligation of Seller pursuant to any other arrangement and/or instrument between Buyer and Seller, from the date hereof and until the Closing, except as contemplated consented to in writing by this Agreement there has not been anythe Buyer, Seller shall not: (a) sale 2.12.1 sell, lease, assign, license or transfer ofany portion of the Purchased Assets or any rights thereunder; or (b) sell, lease, assign, license or transfer any portion of Seller's technology not related to the Business and the Purchased Assets unless such action ​ ​ will not have any effect on the Buyer's rights to, and benefits from, the Purchased Assets or any rights thereunder; 2.12.2 transfer, assign, or grant any agreement to sell license or transfer, any assets of the Business, or any plan, agreement or arrangement granting any preferential right to purchase or acquire any interest in any of the assets of the Business, or requiring consent of any Person to the transfer and assignment sublicense of any of the assets Seller's Transferred Intellectual Property Rights or abandon, dedicate to the public or fail to take action that may result in abandonment or dedication to the public of any of the Business; Seller's Transferred Intellectual Property Rights, or take any action that is intended to reduce the value of any Seller's Transferred Intellectual Property Rights; or (b) sale or transfer of take any motor vehicle, attachment, accessory or piece of materials handling equipment comprising rolling stock of the Business from the Business such action with respect to any other business operation Intellectual Property Rights of Seller Parent unless such action will not have any effect on the Buyer's rights to, and benefits from, Transferred Intellectual Property Rights; 2.12.3 enter into any new customer, supplier, lease, reseller or its Affiliatesdistributor agreement with respect to the Purchased Assets; 2.12.4 subject any of the Purchased Assets, or any part thereof, to any Liens or suffer such to exist; 2.12.5 hire or retain any new employee, consultants, independent contractors, officer or director (who is not an officer) or make, grant, promise, adopt, amend or modify any bonus or any wage or salary increase to any employee, officer or director, or make, grant or promise any other change in employment terms for, or employee benefits received or eligible to be received by, any employee, consultant, independent contractor, officer or director other than grant of options to purchase shares of the Seller; 2.12.6 make any loans or guarantees to or for the benefit of any Seller’s employees, officers or directors, or any members of their immediate families, other than travel advances and other advances made in the ordinary course of business consistent with past practice; 2.12.7 make any substantial capital investment, expenditure or commitment (or a series of related capital investments, expenditures or commitments) or any indebtedness, other than in the ordinary course of business consistent with the past practice or taking up loans from the Equity Holders in the aggregate amount of less than EUR 50,000 for operational or working capital purposes without any security interest or other right granted in connection with the BusinessSeller's Business or Purchased Assets; (c) waiver 2.12.8 declare, set aside or pay any dividend or distribution of any material rights or claims of Sellers, the Partnership or Seller Parent related to the assets of the Business; (d) material breach, amendment or termination of any contract, agreement cash or other instrument property to which Sellers, the Partnership or Seller Parent is a party and by which the respective assets of Seller Parent, the Partnership or Sellers are affected or bound or loss of any material customer of the Business; Equity Holder (ein its capacity as Equity Holder) transaction by Seller Parent, the Partnership or Sellers outside the ordinary course of business with respect to its equity or purchase, redeem or otherwise acquire any of its equity or any warrants, options or other rights to acquire its equity, or make any other payments to any such Equity Holder (other than repurchases of unvested shares at cost from terminated employees and other than in connection with cashless exercise of options); 2.12.9 issue, sell, or otherwise dispose of any of its capital stock or any option, warrant or other right to acquire any capital stock of Seller (other than issuance 2.12.10 of share pursuant to exercise of convertible securities; or issuance of options to employees or service providers); merge, invest in, consolidate with or acquire the business of any other Person or acquire any material property or material assets of the Business or the Businessany other Person; (f) change in the pricing and purchasing policies 2.12.11 adopt a plan of Sellerscomplete or partial liquidation or resolutions providing for or authorizing such a liquidation or dissolution, the Partnership with respect to the Businessrestructuring, recapitalization or reorganization, other than in such a plan that shall commence following the ordinary course Closing; 2.12.12 apply for or receive a government grant; ​ ​ 2.12.13 take any other action that would cause a breach of business consistent with the past practice any of the Business; (g) change in the customary payment cycles for any of Sellers' representations, warranties or the Partnership's payables or receivables with respect to the Business; (h) change in any method of accounting or accounting policies or policy used covenants made by Seller Parent, the Partnership or Sellers, except as required by Applicable Law or by the Financial Accounting Standards Board; (i) change in the customary methods of operation of the Business; (j) change or increase in any compensation payable to, or benefits made available to, any Business Employees, except (i) to the extent required by Applicable Law, or (ii) pursuant to a collective bargaining agreement, or (iii) in the ordinary course of business consistent with past practicethis Agreement; or (k) action by Sellers2.12.14 authorize any of, or commit or agree to take any of, the Partnership Seller Parent, or any employee, officer or agent of Sellers, the Partnership or Seller Parent committing to do any of the foregoingforegoing actions.

Conduct of Seller’s Business. Since From and after the Balance Sheet date of this Agreement and until the Closing Date, except Seller agrees, unless specifically waived by Buyer in writing, as disclosed on SCHEDULE 5.12 or as contemplated by this Agreement there has not been anyfollows: (a) sale or transfer ofSubject to the provisions of applicable operating and other agreements, Seller shall cause ENERVEST OPERATING, L.L.C. to operate, maintain and administer the Assets in a good and workmanlike manner, consistent with its past practices as a reasonably prudent operator and shall maintain, or any agreement cause to sell or transferbe maintained, any assets of the Business, or any plan, agreement or arrangement granting any preferential right to purchase or acquire any interest in any of the assets of the Business, or requiring consent of any Person existing insurance with respect to the transfer and assignment of any of the assets of the BusinessAssets; (b) sale Except for emergency action taken in the face of risk to life, property or transfer of any motor vehicle, attachment, accessory or piece of materials handling equipment comprising rolling stock the environment (in which case Seller shall promptly notify Buyer of the Business from cause, the Business amount expended and contracts and commitments relating to any other business operation same), Seller shall submit to Buyer for prior written approval, which approval shall not be unreasonably withheld, all requests for capital expenditures and all proposed new contracts and agreements relating to the Assets that involve individual commitments of Seller Parent or its Affiliatesmore than Seventy-five Thousand Dollars ($75,000.00), other than in the ordinary course of business consistent with the past practice of the Businessnet to Seller’s interest; (c) waiver Seller will not sell, farmout, encumber or dispose of any material of the Assets, except pursuant to existing preferential purchase rights or claims of Sellers, the Partnership or Seller Parent related that are exercised prior to the assets of the BusinessClosing; (d) material breach, amendment or termination of any contract, agreement or other instrument to which Sellers, the Partnership or Seller Parent is a party and by which the respective assets of Seller Parent, the Partnership or Sellers are affected or bound or loss of will not enter into any material customer new contract affecting the Assets or modify, amend in any material respect or terminate any Lease or existing Contract or enter into any new sales contracts or supply contracts with a term of the Businessmore than thirty (30) calendar days; (e) transaction by Seller Parentwill not settle any claim, the Partnership action or Sellers outside the ordinary course of business with respect proceeding relating to the assets Assets that is in excess of the Business or the BusinessSeventy-five Thousand Dollars ($75,000.00), net to Seller’s interest, without Buyer’s written consent, which consent shall be timely and shall not be unreasonably withheld; (f) change Seller will not plug any Well capable of production of Products in the pricing and purchasing policies of Sellers, the Partnership with respect to the Business, other than in the ordinary course of business consistent with the past practice of the Business;commercial quantities; and (g) change Buyer acknowledges that Seller owns an undivided interest in certain of the customary payment cycles for Assets, and Buyer agrees that the acts or omissions of the other working interest owners who are not affiliated with Seller shall not constitute a violation of the provisions of this Section 4.05, nor shall any of Sellers' or the Partnership's payables or receivables with respect to the Business; (h) change in any method of accounting or accounting policies or policy used by Seller Parent, the Partnership or Sellers, except as action required by Applicable Law or by a vote of working interest owners constitute such a violation so long as Seller has voted its interest in a manner that complies with the Financial Accounting Standards Board; (i) change in the customary methods provisions of operation of the Business; (j) change or increase in any compensation payable to, or benefits made available to, any Business Employees, except (i) to the extent required by Applicable Law, or (ii) pursuant to a collective bargaining agreement, or (iii) in the ordinary course of business consistent with past practice; or (k) action by Sellers, the Partnership Seller Parent, or any employee, officer or agent of Sellers, the Partnership or Seller Parent committing to do any of the foregoingthis Section 4.05 and Section 4.07.