Common use of Conduct Pending Closing Clause in Contracts

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 of the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor shall, and shall cause its Subsidiaries to: (a) operate the Assets in all material respects in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (d) comply in all material respects with all Law to which the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose of the Membership Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Business; (f) not create or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (g) not take any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the Closing set forth in Article VI not being satisfied; (i) not agree to take any action prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interests.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Prior to consummation of the Contributor Disclosure Schedules Transactions contemplated hereby or the termination or expiration of this Agreement pursuant to its terms, unless Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed, and except for actions taken pursuant to Assumed Contracts, or which arise from or are related to the anticipated transfer of the Transferred Assets, or as otherwise expressly provided contemplated by this Agreement or with the prior written consent of the PartnershipAgreement, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor HEALTHSOUTH and Seller shall, and Seller shall cause its the Subsidiaries to: (a) operate Conduct the business represented by, and otherwise deal with, the Transferred Assets in all material respects only in the Ordinary Course of Business usual and use their commercially reasonable efforts to preserve the present business operations and organization relating ordinary course, materially consistent with practices followed prior to the Assetsexecution of this Agreement; (b) Use reasonable efforts to keep intact the Transferred Assets and the business they represent and to preserve relationships beneficial to such business that doctors, patients, Payors, suppliers and others have with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior yearsFacilities; (c) use its commercially reasonable efforts Except as required by their terms, not amend, terminate, renew, fail to preserve intact its current renew or renegotiate any material relationships contract, except in the ordinary course of business and all material contractual and other obligations consistent with third parties practices of the recent past, or default (including material customers and suppliersor take or omit to take any action that, with or without the giving of notice or passage of time, would constitute a default) having business dealings with the Partnership or in any of its Subsidiariesobligations under any such contracts, that would be an Assumed Contract as of the date hereof; (d) comply Not sell, lease, mortgage, encumber, or otherwise dispose of or grant any interest in, or permit or suffer to exist any lien or encumbrance upon or the disposition of, any Facility, Inventory, or items of Equipment having an undepreciated book value in all material respects excess of $50,000, including without limitation any of its leasehold interests therein, whether by the taking of action or the failure to take action, except for (i) sales of Inventory in the ordinary course, (ii) liens constituting Permitted Encumbrances, or (iii) sales or dispositions of Equipment in the ordinary course of business that are consistent with all Law to which practices of the Assets are subjectrecent past; (e) not sell, transfer, assign, convey or otherwise dispose of Maintain in force and effect the Membership Interests or any of the Assets other than the sale of inventory insurance policies identified in the Ordinary Course of BusinessSection 3.19(c); (f) not create or permit the creation of Not enter into any Lien on the Membership Interests or any contract that will constitute an Assumed Contract as of the Assets other than Permitted Liens;Closing except in the ordinary course of business and consistent with practices of the recent past; or (g) not take Not grant any action that would materially adversely affectgeneral or uniform increase in the rates of pay or benefits to Retained Employees (or a class thereof) or any increase in salary or benefits of any senior management personnel of any Facility, or impede or impair, the ability of the Parties except for compensation previously agreed to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result in any of the conditions prior to the Closing set forth date hereof or normal year-end merit increases consistent with HEALTHSOUTH's general practices; provided that nothing in Article VI not being satisfied; this Section shall (i) not agree obligate Seller or any Subsidiary to take make expenditures other than in the ordinary course of business and consistent with practices of the recent past or to otherwise suffer any action prohibited economic detriment, (ii) preclude Seller from paying, prepaying or otherwise satisfying any liability which, if outstanding as of the Closing Date, would be an Assumed Liability or an Excluded Liability, or (iii) preclude Seller from incurring any liabilities or obligations to any third party in connection with obtaining such party's consent to any transaction contemplated by this Section 5.2; Agreement or the Related Agreements provided such liabilities and obligations under this clause (jiii) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities shall be Excluded Liabilities pursuant to existing agreements in the Ordinary Course of Business; or (kSection 2.4(h) not permit Kemmerer to issue or sell any membership interests or other equity interestshereof.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Prior to consummation of the Contributor Disclosure Schedules Transactions or the termination or expiration of this Agreement pursuant to its terms, unless each Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, and except (i) for actions previously approved by both CPS and Texas Genco as current STP Owners, (ii) for actions which are required by Law, (iii) for reasonable actions taken in connection with any emergency or other force majeure event, (iv) for actions which arise from or are related to any of the Excluded Assets or the Excluded Liabilities or the anticipated transfer of the Purchased Assets or the Assumed Liabilities, (v) as otherwise expressly provided contemplated by this Agreement or with disclosed on Schedule 7.4 or another Schedule to this Agreement, or (vi) for actions not reasonably likely to have a Material Adverse Effect or materially impair Seller's authority, right or ability to consummate the prior written consent of the PartnershipTransactions, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor Seller shall, in its capacity as an STP Owner, exercise its rights and shall discharge its obligations under the STP Project Documents in good faith, taking into account (but not being bound by) each Purchaser's views on matters to be voted upon by the STP Owners, and in such a manner so as to endeavor to cause its Subsidiaries the STP Owners, and the Operating Agent, as the case may be, to: (a) operate Operate and maintain the Assets Generation Facility, or cause the Generation Facility to be operated and maintained, in all material respects in accordance with the Ordinary Course ordinary course of Business business consistent with past practices and use their commercially reasonable efforts to preserve the present business operations and organization relating to the AssetsGood Utility Practices; (b) with Except as required by their terms, not amend, terminate, renew, or renegotiate in any material respect any existing Generation Facility Contract required to be listed on Schedule 2.1(f) or enter into any new Generation Facility Contract that would (if it existed on the Assetsdate hereof) have been required to be listed on Schedule 2.1(f), maintain books, accounts and records except in the usual, regular and ordinary manner, on a basis course of business consistent with prior yearspast practices, or default (or take or omit to take any action that with or without the giving of notice or passage of time, would constitute a default) under any of the STP Owners' or the Operating Agent's obligations, as applicable, under any such Generation Facility Contract; (c) use its commercially reasonable efforts Other than pursuant to preserve intact its current the requirements of any existing Generation Facility Contract, not sell, lease, transfer or dispose of, or make any contract for the sale, lease, transfer or disposition of, any material relationships assets or properties which would be included in the Purchased Assets, except sales, leases, transfers or dispositions in the ordinary course of business consistent with past practices and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its SubsidiariesGood Utility Practices; (d) comply in all material respects with all Law to which Not (i) incur any obligations for borrowed money or guarantee or otherwise become liable for the Assets are subjectobligations of, or make any loans or advances to, any Person, except as would after the Closing constitute an Excluded Liability or (ii) delay the payment or discharge of any liability which, upon Closing, would be an Assumed Liability, because of the Transactions; (e) not sell, transfer, assign, convey or Except as otherwise dispose required by the terms of the Membership Interests Employee Plans or applicable Law, not (i) materially increase the salaries or wages of Employees prior to the Closing, (ii) take any of action prior to the Assets Closing to effect a material change in the Employee Plans, (iii) take any action prior to the Closing to materially increase the aggregate benefits payable to Employees, or (iv) hire at, or transfer to the Generation Facility, any new employees prior to the Closing, other than the sale of inventory to fill vacancies in existing positions in the Ordinary Course reasonable discretion of BusinessSeller; (f) not create Not grant any express Encumbrance on any Purchased Assets, except Permitted Encumbrances or permit to the creation of any Lien on extent (i) required or permitted incident to the Membership Interests or any operation of the Assets other than Permitted LiensPurchased Assets, or (ii) required or evidenced by any existing Generation Facility Contract; (g) not take any action that would materially adversely affect, Maintain or impede or impair, cause to be maintained in force and effect the ability of material property and liability insurance policies related to the Parties to consummate the transactions contemplated hereby or therebyGeneration Facility; (h) Not make any material change in the levels of Inventory maintained at the Generation Facility except as required by Law, not take any action that would reasonably be expected to result in any accordance with the ordinary course of the conditions to the Closing set forth in Article VI not being satisfiedbusiness consistent with past practices or except for such material changes which are consistent with Good Utility Practices; (i) not agree Use Commercially Reasonable Efforts to take maintain customary business relationships with any action prohibited by this Section 5.2;lessor, licensor, customer or supplier of Seller, each in accordance with the ordinary course of business consistent with past practices; and (j) not permit Kemmerer Promptly give notice to increase its indebtednesseach Purchaser upon acquiring Knowledge of the occurrence or impending occurrence of any event which could reasonably be expected to (i) cause any of the representations and warranties of Seller contained herein to be untrue in any material respect, (ii) constitute a breach of any of the covenants of Seller contained in this Agreement, or incur (iii) cause a Material Adverse Effect, including any obligation damage, destruction or liabilitycasualty loss affecting the Generation Facility, direct whether or indirectnot covered by insurance, other than the incurrence of liabilities that would cause a Material Adverse Effect and that has not been otherwise disclosed to each Purchaser; provided that notice will be deemed given pursuant to existing agreements this Section 7.4(j) of any event disclosed at any meeting of the Owners Committee (as such term is defined in the Ordinary Course STP Participation Agreement) at which one or more representatives of Businesseach Purchaser is in attendance; orand (k) Provided, however, that nothing in this Section 7.4 shall (i) obligate Seller to make expenditures other than in the ordinary course of business consistent with past practices, Good Utility Practices or applicable Law or to otherwise suffer any economic detriment, (ii) preclude Seller from paying, prepaying or otherwise satisfying any liability which, if outstanding as of the Closing Date, would be an Assumed Liability or an Excluded Liability, (iii) preclude Seller from incurring any liabilities or obligations to any third party in connection with obtaining such Party's consent to any transaction contemplated by this Agreement or the Ancillary Agreements provided that such liabilities and obligations incurred under this clause (iii) shall be Excluded Liabilities pursuant to Section 2.4 hereof if not permit Kemmerer approved in advance by each Purchaser (which approval shall not be unreasonably withheld, conditioned or delayed) or (iv) preclude Seller from instituting, participating in or completing any program designed to issue promote compliance or sell any membership interests comply with Laws or other equity interestsGood Utility Practices with respect to the Generation Facility or Purchased Assets.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 of From the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 date hereof until the Closing or termination of this Agreement as provided in Article VIIIClosing, Contributor shall, Sellers shall conduct and shall cause its Subsidiaries to: (a) operate carry on the Assets in all material respects Business in the Ordinary Course of Business and in material compliance with Law, and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use its commercially reasonable efforts to preserve intact its current material relationships the Purchased Assets, reasonable wear and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings tear excepted. Except as contemplated by this Agreement or as otherwise consented to in writing by Buyer, which consent shall not be unreasonably conditioned, delayed or withheld, solely in connection with the Partnership operation of the Business, Sellers shall: (a) maintain the Facilities in the Ordinary Course, reasonable wear and tear excepted; (b) use commercially reasonable efforts in the Ordinary Course to maintain Inventory at customary levels consistent with past practice; (c) not purchase, sell, lease, license, mortgage, pledge or otherwise acquire or dispose of any properties, rights or assets of its Subsidiariesor in connection with the Business with a value in excess of $100,000 individually or $1,000,000 in the aggregate, except for Inventory purchased, sold or otherwise disposed of in the Ordinary Course and except for purchases as required to remain in compliance with Law; (d) comply in all material respects not enter into, or become obligated under, any lease, contract, agreement or commitment with all Law respect to which the Assets are subjectBusiness that would be a Material Contract if existing on the date hereof; (e) not sell, transfer, assign, convey enter into any agreement or otherwise dispose commitment with any Affiliate of the Membership Interests or any of the Assets Sellers other than the sale of inventory in the Ordinary Course of Businessand terminable without payment or penalty by the Business on or before Closing; (f) not create grant any Lien, or permit the creation of or suffer to exist any Lien Lien, other than a Permitted Exception, on the Membership Interests or any of the Purchased Assets other than Permitted Liensor cancel any material debts or waive any material claims or rights pertaining to the Business or the Purchased Assets; (g) not take change, amend or otherwise modify any action that would materially adversely affectaccounting practice or policy with respect to the Business, except as required by Law or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or therebychanges in GAAP; (h) except as required by Lawnot materially change, not take amend or otherwise modify or terminate any action that would reasonably be expected Material Contract, other than any expiration of any Material Contract pursuant to result in any of the conditions to the Closing set forth in Article VI not being satisfiedits terms; (i) maintain in full force and effect with respect to the Business, policies of insurance of substantially the same type, character and coverage as the policies carried and maintained by the Business as of the date of this Agreement, it being understood and acknowledged that Sellers do not agree to take any action prohibited by this Section 5.2maintain property and casualty insurance on the Facilities; (j) not permit Kemmerer authorize or commit to increase its indebtedness, or incur make any obligation or liability, direct or indirect, other capital expenditures following the Closing except aggregate capital expenditures of less than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business$100,000; orand (k) not permit Kemmerer agree or commit to issue do or sell otherwise take any membership interests or other equity interestsaction inconsistent with any of the foregoing.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 of the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 the date hereof until the Closing or termination of this Agreement as provided in Article VIII, Contributor shall, and shall cause its Subsidiaries to: (a) operate the Assets in all material respects in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (d) comply in all material respects with all Law to which the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose of the Membership Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Business; (f) not create or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (g) not take any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the Closing set forth in Article VI not being satisfied; (i) not agree to take any action prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interests.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Prior to consummation of the Contributor Disclosure Schedules Transactions or the termination or expiration of this Agreement pursuant to its terms, unless Purchaser shall otherwise consent in writing, and except (i) for actions which are required by Law, (ii) for reasonable actions taken in connection with any emergency force majeure event and promptly disclosed in writing to Purchaser, or (iii) as otherwise expressly provided contemplated by this Agreement or with the prior written consent of the Partnershipdisclosed in Schedule 6.4, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor Seller shall, and shall cause its Subsidiaries to: (a) operate Operate and maintain the Transferred Assets, or cause the Transferred Assets to be operated and maintained, in all material respects in accordance with the Ordinary Course ordinary course of Business business consistent with past practices and use their commercially reasonable efforts to preserve the present business operations Good Utility Practices and organization relating to the Assetsapplicable Laws, including Environmental Laws; (b) with respect to Not sell, lease, transfer or dispose of, or make any contract for the sale, lease, transfer or disposition of, any material assets or properties which would be included in the Transmission Assets, maintain books, accounts and records except in the usual, regular and ordinary manner, on a basis consistent with prior yearscourse of business or amend Section 6.8 or 6.16 of the Facility Purchase Agreement; (c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or Not grant any of its SubsidiariesEncumbrance on any Transmission Assets, except Permitted Encumbrances; (d) comply Maintain or cause to be maintained in all force and effect the material respects with all Law property and liability insurance policies related to which the Assets are subjectTransmission Assets; (e) not sell, transfer, assign, convey or otherwise dispose Not take any action which would cause any of Seller’s representations and warranties set forth in Article 4 to be untrue in any material respect as of the Membership Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Business;Closing; and (f) not create Not, without first consulting with Purchaser regarding the same, resolve, settle or permit the creation of compromise any Lien material Environmental Condition, Environmental Claim or Environmental Liability, including without limitation with any Governmental Authority, which could impose any post-Closing liabilities on the Membership Interests Purchaser or require any of the Assets other than Permitted Liens; (g) not take any action post-Closing Remediation; provided, however, that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result nothing in any of the conditions to the Closing set forth in Article VI not being satisfied; this Section 6.4 shall (i) not agree obligate Seller to take make expenditures other than in the ordinary course of business consistent with past practices, (ii) preclude Seller from incurring any action prohibited liabilities or obligations to any third party in connection with obtaining such Party’s consent to any transaction contemplated by this Section 5.2; Agreement or the Ancillary Agreements or (jiii) not permit Kemmerer preclude Seller from instituting, participating in or completing any program designed to increase its indebtedness, promote compliance or incur comply with applicable Laws or Good Utility Practices with respect to the Transmission Assets or (iv) obligate Seller to acquiesce in any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements reduction in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsPurchase Price.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 (a) Prior to the consummation of the Contributor Disclosure Schedules Transactions or as otherwise expressly provided by this Agreement the termination or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination expiration of this Agreement pursuant to its terms, unless Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, Seller shall cause each of the Companies, as provided in Article VIIIapplicable to, Contributor and Seller shall, in the case of subsection (x) below, and COSI PUNA shall cause its Subsidiaries toin the case of subsection (i) and (vii) below, do the following: (ai) operate and maintain the Assets Plant in accordance in all material respects in with the Ordinary Course ordinary course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assetsconsistent with past practices; (bii) with respect except as required by their terms and except for the Loan Documents as provided in Section 7.18, not amend, terminate prior to the Assetsexpiration date, maintain booksrenew, accounts and records or renegotiate in any material respect any Existing Contract required to be listed in Schedule 5.9 or enter into any new contract or agreement that would (if it existed on the date hereof) have been required to be listed in Schedule 5.9, except in the usual, regular and ordinary manner, on a basis course of business consistent with prior years; (c) use its commercially reasonable efforts past practices and except for Intercompany Arrangements that will be terminated and paid in full at or before Closing, or fail to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (d) comply in all material respects with all Law to which the Assets are subjectits obligations under any such Existing Contract; (eiii) other than pursuant to the requirements of any Existing Contract, not sell, transferlease, assigntransfer or dispose of, convey or make any contract for the sale, lease, transfer or disposition of, any material assets or properties of PGV, except sales, leases, transfers or dispositions in the ordinary course of business and other than terminating the O&M Agreement as provided herein; (iv) not (A) issue any ownership rights or securities convertible into ownership rights, or repurchase, redeem, or otherwise dispose acquire any such ownership rights; (B) merge into or with or consolidate with any other Person or acquire all or substantially all of the Membership Interests business or assets of any Person; (C) make any material change in its partnership agreement; (D) purchase any securities of any Person, except for investments made in the ordinary course of business consistent with past practices; (E) incur any additional obligations for borrowed money or guarantee or otherwise become liable for the obligations of, or make any loans or advances to, any Person, except obligations for loans or advances from Seller or any of the Assets its Affiliates; or (F) authorize, declare, or pay any cash dividend or any other similar distribution to Seller or any Affiliate of Seller other than the sale of inventory as payment for goods and services rendered in the Ordinary Course of Business;ordinary course, including, but not limited to, payments made pursuant to Section 7.19. (f) not create or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (gv) not take any action that would materially adversely affector enter into any commitment with respect to or in contemplation of any liquidation, dissolution, recapitalization, reorganization, or impede or impair, the ability other winding up of the Parties to consummate the transactions contemplated hereby or therebyits Business; (hvi) not change its accounting policies or practices (including, without limitation, any change in depreciation or amortization policies), except as required under GAAP; (vii) not enter into any employment agreement not terminable at will and will not increase any compensation of the Transferred Employees other than in the ordinary course of business; (viii) not grant any express Encumbrance on any assets of PGV, except to the extent (i) required or permitted incident to the operation of the assets of PGV and the business of PGV in the ordinary course of business of PGV, or (ii) required or evidenced by Law, any Existing Contract; (ix) maintain in force and effect the Company Insurance Policies; and (x) not take any action that which would reasonably be expected to result in cause any of the conditions to the Closing Seller's representations and warranties set forth in Article VI Articles 4 and 5 to be incorrect in any material respect as of the Closing. (b) Notwithstanding anything to the contrary in Section 7.3(a), Seller shall not being satisfied; be (i) obligated to make or cause PGV to make expenditures other than in the ordinary course of business consistent with past practices or to otherwise suffer any economic detriment, or (ii) precluded from, and PGV shall not agree be precluded from, instituting, participating in or completing any program designed to promote compliance or comply with Applicable Laws or other good business practices with respect to the Plant; provided, however, that notwithstanding anything to the contrary in Section 7.3(a), Seller may take or may cause PGV to take (w) actions which are required by Applicable Law, (x) reasonable actions in connection with any action prohibited emergency or other force majeure event, or (y) actions otherwise contemplated by this Section 5.2; (jAgreement or disclosed in Schedule 7.3(b) not permit Kemmerer or any other Schedule to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity intereststhis Agreement.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Prior to consummation of the Contributor Disclosure Schedules Transactions contemplated hereby or as the termination or expiration of this Agreement pursuant to its terms, unless the Purchaser GP shall otherwise expressly provided consent in writing, which consent shall not be unreasonably withheld or delayed, and except for actions (i) which are required by Law; (ii) are reasonably taken in connection with any emergency or other force majeure event; (iii) arise from or are related to any of the Excluded Assets or the Excluded Liabilities or are necessary for the anticipated transfer of the Partnership Interests; or (iv) are otherwise contemplated by this Agreement or disclosed in Schedule 6.4; Sellers shall cause the Company and, with the prior written consent of the Partnershiprespect to paragraphs (a), from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor shall(f), and shall cause its Subsidiaries (g), below the Facility Operator to: (a) operate Operate and maintain the Assets Facility in all material respects in accordance with the Ordinary Course ordinary course of Business business consistent with past practices and use their commercially reasonable efforts to preserve the present business operations and organization relating to the AssetsGood Operating Practices; (b) Not sell, lease, transfer, or dispose of, or make any contract for the sale, lease, transfer or disposition of, any material assets or properties of the Company or the sale of capacity, energy or services, except (i) sales of capacity, energy or services in the ordinary course of business consistent with respect past practices and which do not extend beyond December 31, 2004 (or, if earlier or later, the anticipated Closing Date) or (ii) where the Company has been instructed by ERCOT pursuant to the Assets, maintain books, accounts and records in ERCOT out-of-order merit protocols to run the usual, regular and ordinary manner, on a basis consistent with prior yearsFacility or reserve the Facility’s capacity; (c) use Not (i) make any distributions in respect of, or issue any of, its commercially reasonable efforts partnership interests or securities convertible into its partnership interests, or repurchase, redeem, or otherwise acquire any such partnership interests or make or propose to preserve intact make any other change in its current material relationships capitalization; provided, however, that on or before the Closing Date, Sellers shall have the right to cause the Company to distribute to the Sellers and their Affiliates any or all material contractual of the Excluded Assets and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its SubsidiariesExcluded Liabilities held by the Company; (d) comply Not take any action or enter into any commitment with respect to or in all material respects with all Law to which contemplation of any liquidation, dissolution, recapitalization, reorganization or other winding up of the Assets are subjectCompany’s business or operations; (e) Not change its accounting policies or practices (including any change in depreciation or amortization policies), except as required under GAAP and disclosed in writing to each Purchaser, and not sell, transfer, assign, convey or otherwise dispose of the Membership Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Businesschange its federal tax classification as a disregarded entity; (f) Not (i) enter into any employment agreement not create terminable by the Company at will and without cost to the Company, (ii) grant or permit increase any bonus, base salary, base wage, severance, termination or other compensation or benefits or other enhancement to the creation terms or conditions of employment of any Lien on Facility Employee, other than payment prior to the Membership Interests or any Closing of the Assets other than Permitted Liensamounts specified in Section 6.16(b) and base wage and salary increases not to exceed five percent (5%) of the 2004 base wage or salary, as applicable, for such Facility Employee, effective as of December 2004 or January 2005, provided, however, that the aggregate total of all such base wage or salary increases for all Facility Employees shall not exceed 3% of the aggregate 2004 wages and salaries of the Facility Employees, or (iii) terminate the employment of any Facility Employee without cause; (g) Not (i) create any employee benefit plan (within the meaning of Section 3(3) of ERISA) or any other employee benefit plan or program not take subject to ERISA or (ii) amend in any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or therebymaterial respect any Benefit Plan; (h) except as required by Law, not take Not grant any action that would reasonably be expected to result in express Encumbrance on any assets of the conditions to the Closing set forth in Article VI not being satisfiedCompany, except for Permitted Encumbrances; (i) not agree Maintain in force and effect the material property and liability insurance policies related to take any action prohibited by this Section 5.2the Facility; (j) not permit Kemmerer Not take any action which would cause any of Sellers’ representations and warranties set forth in Article 4 to increase its indebtedness, or incur be incorrect in any obligation or liability, direct or indirect, other than material respect as of the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; orClosing; (k) not permit Kemmerer Not enter into any contract or agreement, or modify any contract or agreement, with any Governmental Authority having responsibility for Taxes; (l) Use commercially reasonable efforts to maintain in full force and effect all Environmental Permits and Non-Environmental Permits held by the Company; (m) Not grant any express waiver of any material term under, or give any material consent with respect to, any Material Facility Contract or otherwise cancel any material debt owing to, or expressly waive any material claim or right of, the Company; (n) Not incur, create, assume or otherwise become liable for indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person, other than trade payables incurred in the ordinary course of business or accounts payable pursuant to any Material Facility Contract; (o) Not enter into, terminate or amend any Contract that is or would constitute a Material Facility Contract; (p) Cause to be paid when due all Taxes imposed on the Company or the Facility, except for any such Taxes that the Company contests in good faith and for which adequate reserves are maintained in accordance with GAAP; (q) Not amend or modify its formation documents; (r) Not sell any membership interests or other equity interests.otherwise transfer emission credits held for the use of the Facility or the Company, except as required by applicable Environmental Laws;

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 of (a) From the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination date of this Agreement as provided in Article VIIIto Closing, Contributor shall, Seller will conduct its operations and shall cause its Subsidiaries to: (a) operate the Assets in all material respects affairs diligently and only in the Ordinary Course of Business and use their commercially reasonable efforts Business, except for actions taken with Buyer’s prior written consent necessary to preserve prepare for the present business operations and organization relating to consummation of the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use transactions contemplated by this Agreement. Seller will exercise its commercially reasonable efforts to preserve intact the present business organization, including completing all applicable renewals and revalidations, personnel and goodwill of Seller and the Business and to comply with applicable Laws. (b) Until Closing, Seller will not, and will cause its current material relationships Affiliates and Representatives not to, directly or indirectly: (i) enter into or continue any negotiations, discussions or Contracts contemplating or relating to the acquisition by a Person other than Buyer of all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (d) comply in all material respects with all Law to which the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose part of the Membership Interests Purchased Assets, equity securities or any other securities, properties, Assets or business of Seller or the Business (regardless of the Assets other than the sale of inventory in the Ordinary Course of Business; (f) not create or permit the creation of any Lien on the Membership Interests or any form of the Assets other than Permitted Liens; transaction); (gii) not take any an action that could interfere with or prevent the timely consummation of the transactions contemplated by this Agreement or another Transaction Document; or (iii) except for actions taken with Buyer’s prior written consent necessary for the consummation of the transactions contemplated by this Agreement, take an action that would materially adversely affectconstitute a Restricted Event or that would be inconsistent with a representation, warranty, covenant or impede agreement set forth in this Agreement, as if such representation, warranty, covenant or impair, the ability agreement were made both before and after such action. If there is a breach of the Parties to consummate clause (i) of this Section 4.1(b) and the transactions contemplated hereby by this Agreement are not consummated for any reason, in addition to other rights and remedies available to Buyer (which will remain available to Buyer notwithstanding anything else in this Agreement), Seller will, within three Business Days following written demand by Buyer, immediately reimburse Buyer for all fees and expenses actually paid or thereby;incurred by Buyer and its Affiliates in connection with the transactions contemplated by this Agreement, including fees of its Representatives. (hc) except as required by Law, not take any action that would reasonably be expected to result in any Buyer shall prepare and submit all applicable notices and change of the conditions ownership applications (at Buyer’s sole expense) related to the Closing set forth in Article VI not being satisfied; (i) not agree Governmental Authorizations with each applicable Governmental Body necessary to take any action prohibited by this Section 5.2; (j) not permit Kemmerer continue to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than operate the incurrence of liabilities pursuant to existing agreements Business in the Ordinary Course same manner as Seller prior to Closing. Seller shall fully cooperate with Buyer and provide any documents or information required for Buyer to complete such submissions; provided, however, that Seller will have an opportunity to review such applications (which may be redacted to protect confidential or proprietary information, as determined by Buyer in its sole discretion) in advance of Business; or filing and will be afforded reasonable access to all communications with Governmental Bodies related to such applications and related consents, notices and approvals (k) not permit Kemmerer which may also be redacted to issue protect confidential or sell any membership interests or other equity interestsproprietary information as determined by Buyer in its sole discretion).

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 of From the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination date of this Agreement as provided in Article VIIIto the Closing Date, Contributor (a) Seller shall, and shall cause its Subsidiaries the Companies to: (a) operate , use their best efforts to conduct their affairs in such a manner so that, except as otherwise contemplated or permitted by this Agreement, the Assets representations and warranties of Seller contained in Article V hereof shall continue to be true and correct in all material respects in on and as of the Ordinary Course Closing Date as if made on and as of Business the Closing Date (unless such representations and use their commercially reasonable efforts warranties relate to preserve the present business operations and organization relating to the Assets; a specified date); (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) Purchaser shall use its commercially reasonable best efforts to preserve intact conduct its current material relationships affairs in such a manner so that, except as otherwise contemplated or permitted by this Agreement, the representations and all material contractual warranties of Purchaser contained in Article VI hereof shall continue to be true and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (d) comply correct in all material respects with all Law to which the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose on and as of the Membership Interests Closing Date as if made on and as of the Closing Date (unless such representations and warranties relate to a specified date); (c) Seller shall notify Purchaser promptly of any event, condition or circumstance which, if existing or known on the date hereof, would have been required to be set forth in any schedule or disclosed pursuant to this Agreement or of any fact which, if existing or known on the date hereof, would have made any of the Assets other than the sale representations of inventory such party contained herein untrue in the Ordinary Course of Business; any material respect; and (fd) not create or permit the creation Purchaser shall notify Seller promptly of any Lien event, condition or circumstance which, if existing or known on the Membership Interests date hereof, would have been required to be set forth in any schedule or disclosed pursuant to this Agreement or of any fact which, if existing or known on the date hereof, would have made any of the Assets other than Permitted Liens; (g) not take representations of Purchaser contained herein untrue in any action that would materially adversely affect, material respect. No such information shall impact any representation or impede or impair, the ability warranty of the Parties to consummate party disclosing such information in connection with any breach of any representation or warranty; provided that a breach of this Section 7.5 shall not be considered for purposes of determining the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result in any satisfaction of the closing conditions to the Closing set forth in Article VI VIII or give rise to a right of termination under Article IV if the underlying breach or breaches with respect to which the other party failed to give notice would not being satisfied; (i) not agree to take any action prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements result in the Ordinary Course failure of Business; or (k) the closing conditions set forth in Article VIII or would not permit Kemmerer result in the ability of such non-breaching Party to issue or sell any membership interests or other equity intereststerminate this Agreement under Article IV, as the case may be.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Prior to consummation of the Contributor Disclosure Schedules transactions contemplated hereby or as otherwise expressly provided by this Agreement the termination or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination expiration of this Agreement as provided in Article VIII, Contributor shallpursuant to its terms, and shall cause its Subsidiaries toexcept to the extent approved by Purchaser, Seller shall: (a) operate Except as required by their terms, or except to the Assets in extent agreed to by all material respects Facilities Owners (including Seller and Purchaser), not amend, terminate, renew, or renegotiate any existing Facilities Contract or enter into any new Facilities Contract, except in the Ordinary Course ordinary course of Business business and use their commercially reasonable efforts consistent with practices of the recent past, or default (or take or omit to preserve take any action that with or without the present business operations and organization relating to the Assetsgiving of notice or passage of time, would constitute a default) under any of its obligations under any Facilities Contract; (b) with respect to Not: (i) sell, lease, transfer or dispose of, or make any contract for the sale lease, transfer or disposition of, any assets or properties which would be included in the Assets, maintain books, accounts and records other than sales in the usualordinary course of business which would not, regular individually or in the aggregate; have a Material Adverse Effect upon the operations or value of the Facilities or the Facilities Switchyard; (ii) incur, assume, guaranty, or otherwise become liable in respect of any indebtedness for money borrowed, in each case which would result in Purchaser assuming such liability hereunder after the Closing; (iii) delay the payment and ordinary mannerdischarge of any liability which, on a basis consistent with prior years;upon Closing, would be an Assumed Liability, because of the transactions contemplated hereby; (iv) encumber or voluntarily subject to any lien any Asset, except for Permitted Encumbrances or (v) except to the extent approved by the other Facilities Owners, not settle any claims against the Facilities or against Seller relating to the Facilities or the Facilities Contracts; and (c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or Not take any action which would cause any of its Subsidiaries;Seller’s representations and warranties set forth in ARTICLE 4 to be materially false as of the Closing; provided, that nothing in this Section 6.3 shall (i) preclude Seller from paying, prepaying or otherwise satisfying any liability which, if outstanding as of the Closing Date, would be an Assumed Liability or an Excluded Liability, or (ii) preclude Seller from incurring any liabilities or obligations to any third party in connection with obtaining such Party’s consent to any transaction contemplated by this Agreement or the Ancillary Agreements; provided that any such liabilities or obligations incurred pursuant to clause (ii) shall be Excluded Liabilities. (d) comply in all material respects Seller agrees to advise Purchaser of any request that Seller intends to file with all Law the CPUC for approval of Capital Expenditures by Seller budgeted for 2012 and of any action taken by the CPUC with respect thereto. If the CPUC denies such request or CPUC approval is not received by November 30, 2011, the Parties will meet within 15 days thereafter to which discuss the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose consequences of the Membership Interests CPUC denial or failure to act, including its potential impact on the 2012 capital budget for the Plant, the respective obligations of the Parties under the Facilities Contracts and the operation of the Plant in 2012; it being understood that there is no obligation of either Party to reach any agreement with respect to any of the Assets other than the sale of inventory in the Ordinary Course of Business; (f) not create or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (g) not take any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the Closing set forth in Article VI not being satisfied; (i) not agree to take any action prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsmatters discussed.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 of From the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 date hereof until the Closing or the earlier termination of this Agreement as provided in accordance with Article VIIIXI hereof, Contributor shallthe Sellers shall conduct and carry on the Business in the Ordinary Course, use commercially reasonable efforts in the Ordinary Course to retain the employees primarily engaged in the Business, and to preserve intact the Purchased Assets and all material business relationships with third parties with respect to the Business. The Sellers shall cause its Subsidiaries topromptly notify Purchaser of any event, circumstance, change or effect that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect. Except as expressly contemplated by this Agreement, as set forth in Section 5.02 of the Disclosure Schedule or as otherwise consented to in writing by the Purchaser, solely in connection with the operation of the Business, the Sellers shall: (a) operate the Assets in all material respects make capital and operating expenditures in the Ordinary Course and as contemplated in the Cap Ex Schedule, and otherwise as necessary to maintain the Purchased Assets (including using any casualty proceeds or proceeds from the disposition of Business and any properties, rights or assets to acquire or repair Purchased Assets for use their commercially reasonable efforts to preserve in the present business operations and organization relating to the AssetsBusiness); (b) with respect maintain Inventory at a level sufficient to serve the Assets, maintain books, accounts then-current requirements of the Business and records otherwise in the usual, regular and ordinary manner, on a basis consistent with prior yearsOrdinary Course; (c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings not purchase, sell, lease, license, mortgage, pledge or otherwise acquire or dispose of any properties, rights or assets of or in connection with the Partnership Business with a value in excess of $500,000 individually or any $1,000,000 in the aggregate, except for Inventory purchased, sold or otherwise disposed of its Subsidiariesin the Ordinary Course and except for purchases as required to remain in compliance with Law (in which case Sellers shall provide Purchaser with prompt notice of such transaction); (d) comply not increase or otherwise change the rate or nature of the compensation (including wages, salaries, bonuses, and benefits under pension, profit sharing, deferred compensation and similar plans or programs) which is paid or payable to any particular Business Employee, except (i) in all material respects with all Law the Ordinary Course or (ii) as may be necessary to which retain any Business Employee; provided, that in the Assets are subjectcase of clauses (i) and (ii) the aggregate cost of such increases to the Business on an annualized basis does not exceed $500,000 or (iii) pursuant to existing plans or agreements disclosed in Section 7.16 of the Disclosure Schedule; (e) not selladopt, transferamend, assignmodify or terminate any bonus, convey profit sharing, sales incentive, incentive, employment, retention, severance, change in control, retirement, welfare or otherwise dispose other plan, contract or commitment for the benefit of the Membership Interests or any of the Assets Business Employees of the Sellers, except to the extent it would not result in any liability to Purchaser and would not create any financial incentive for any such Business Employee to remain in the employ of any Seller after the Closing Date (other than the sale of inventory in the Ordinary Course of Businessany benefits or other compensation arrangements implemented broadly and consistently SSCE-wide); (f) not create enter into, or permit become obligated under, any lease, contract, agreement or commitment with respect to the creation Business (i) entered into outside of any Lien the Ordinary Course, or (ii) that would be a Material Contract if existing on the Membership Interests or any of the Assets other than Permitted Liensdate hereof except for capital expenditures in accordance with Section 5.02(a); (g) not take enter into any action that would materially adversely affect, agreement or impede commitment with any Affiliate of Sellers other than in the Ordinary Course and terminable without payment or impair, penalty by the ability of the Parties to consummate the transactions contemplated hereby or therebyBusiness on less than 60 days notice; (h) except as required by Law, not take any action that would reasonably be expected to result in any invoice for accounts receivable outside of the conditions to Ordinary Course, including by accelerating the Closing set forth in Article VI not being satisfiedtiming of such invoicing; (i) not agree grant any Lien, or permit or suffer to take exist any action prohibited by this Section 5.2Lien other than a Permitted Exception, on any of the Purchased Assets or cancel any material debts or waive any material claims or rights pertaining to the Business or the Purchased Assets or grant or enter into any Seller Credit Support Instruments; (j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of or in accordance with Seller’s established employment practices not terminate any Business Employee or hire any employees to work primarily in the Business; or; (k) except for those employees specified in Section 5.02(k) of the Disclosure Schedule, not permit Kemmerer solicit for employment or hire (for the avoidance of doubt, whether as a direct employee or through any consulting or similar arrangement), or otherwise cause or seek to issue cause to leave the employ of the Sellers any Person who is or sell was an employee of the Sellers working primarily in the Business at any membership interests time during the three-month period immediately preceding such solicitation or hiring; (l) not change, amend or otherwise modify any accounting practice or policy with respect to the Business, except as required by GAAP or Law; (m) not materially change, amend or otherwise modify or terminate any Material Contract; (n) maintain in full force and effect with respect to the Business, policies of insurance of substantially the same type, character and coverage as the policies carried and maintained by the Business as of the date of this Agreement; (o) not authorize or commit to make any capital expenditures following the Closing except (i) those specified on, and in the amounts therefor set forth on, the Cap Ex Schedule, (ii) aggregate capital expenditures of less than $1,000,000; and (iii) those required to remain in compliance with Law, in which case Sellers shall provide Purchaser with prompt notice of the amounts so paid or committed to be paid; (p) not, directly or indirectly through agents or advisors (by way of furnishing information or otherwise), (i) solicit, initiate or encourage any inquiries or proposals that constitute or could reasonably lead to, a proposal or offer for the sale, assignment, transfer or conveyance of the Business or the Purchased Assets other equity intereststhan the transaction contemplated by this Agreement (an “Acquisition Proposal”), or (ii) engage in negotiations or discussions concerning any Acquisition Proposal, and shall deal exclusively with the Purchaser with respect to the sale of the Purchased Assets and the Business; provided however, that the foregoing shall not in any manner prohibit SSCE or its Affiliates, managers, members, partners, directors, officers, employees, agents or advisors from having discussions with any Person regarding the merger, acquisition, purchase or sale of stock of SSCE or of all or substantially all of the assets of SSCE or any business combination or change in control of SSCE, it being agreed that any such transaction shall not effect or relieve the obligations of the Sellers or Affiliates under this Agreement; (q) pay Taxes of the Business that become due and payable in the Ordinary Course; and (r) not agree or commit to do or otherwise take any action inconsistent with any of the foregoing.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Prior to consummation of the Contributor Disclosure Schedules Transactions contemplated hereby or as the termination or expiration of this Agreement pursuant to its terms, unless Purchaser shall otherwise expressly provided consent in writing, which consent shall not be unreasonably withheld or delayed, and except for actions (i) which are required by Law; (ii) are reasonably taken in connection with any emergency or other force majeure event; (iii) arise from or are related to any of the Excluded Assets or the Excluded Liabilities or are necessary for the anticipated transfer of the Membership Interests; or (iv) are otherwise contemplated by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination of this Agreement as provided disclosed in Article VIII, Contributor shall, and Schedule 6.4; Seller shall cause its Subsidiaries the Company to: (a) operate Operate and maintain the Assets Facility in all material respects in accordance with the Ordinary Course ordinary course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assetsconsistent with past practices; (b) with respect Other than pursuant to the Assetsrequirements of any existing Material Facility Contract, maintain booksnot sell, accounts and records lease, transfer, or dispose of, or make any contract for the sale, lease, transfer or disposition of, any material assets or properties of the Company or any spare parts or other inventory, except sales, leases, transfers or dispositions in the usual, regular and ordinary manner, on a basis course of business consistent with prior yearspast practices; (c) use Not make any distributions in respect of, or issue any of, its commercially reasonable efforts membership interests or securities convertible into its membership interests, or repurchase, redeem, or otherwise acquire any such membership interests or make or propose to preserve intact make any other change in its current material relationships capitalization; provided, however, that on or before the Closing Date, Seller shall have the right to cause the Company to distribute to Seller and its Affiliates any or all material contractual of the cash and other obligations with third parties (including material customers and suppliers) having business dealings with Excluded Assets held by the Partnership or any of its SubsidiariesCompany; (d) comply Not take any action or enter into any commitment with respect to or in all material respects with all Law to which contemplation of any liquidation, dissolution, recapitalization, reorganization or other winding up of the Assets are subjectCompany’s business or operations; (e) not sellNot change its accounting policies or practices (including, transferwithout limitation, assignany change in depreciation or amortization policies), convey or otherwise dispose of the Membership Interests or any of the Assets other than the sale of inventory except as required under GAAP and disclosed in the Ordinary Course of Businesswriting to Purchaser; (f) Not enter into any employment agreement not create or permit terminable by the creation of any Lien on Company at will and without cost to the Membership Interests or any of the Assets other than Permitted LiensCompany; (g) Not create any employee benefit plan (within the meaning of Section 3(3) of ERISA) or any other employee benefit plan or program not take any action that would materially adversely affectsubject to ERISA, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or therebyexcept as required by Law; (h) except as required by Law, not take Not incur any action that would reasonably be expected to result debt (other than account payables arising in the ordinary course of business) or grant any Encumbrance on any assets of the conditions Company, except (i) for Permitted Encumbrances; or (ii) to the Closing set forth in Article VI not being satisfiedextent required or evidenced by any existing Material Facility Contract; (i) not agree Maintain in force and effect the property and liability insurance policies related to take any action prohibited by this Section 5.2the Facility; (j) not permit Kemmerer Not take any action which would cause Seller’s representations and warranties set forth in Article 4 to increase its indebtedness, or incur be incorrect in any obligation or liability, direct or indirect, other than material respect as of the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; orClosing; (k) Not enter into any contract or agreement, or modify any contract or agreement, with any Governmental Authority having responsibility for Taxes; (l) Not commit or agree to enter into (or modify) any contract or agreement specified in clause (k) of this Section; (m) Not enter into, amend, terminate, waive any rights or defaults, or modify in any respect, and except as incident to the operation of the business and assets of the Company in the ordinary course, allow to lapse or expire, or fail to timely apply for renewal of any Material Facility Contract or any Permit; (n) Other than the Generator Rotor Repairs, not permit Kemmerer incur any obligation to make capital expenditures in excess of $100,000, in the aggregate, except those that are paid prior to the Closing; (o) Not amend or otherwise change its charter, bylaws, member control agreement or equivalent organizational documents; and (p) Not acquire (including without limitation by merger, consolidation or acquisition of stock or assets) any interest in any other Person; and not incur any indebtedness for borrowed money or issue any debt securities or sell assume, guarantee or endorse, or otherwise become responsible for the obligations of any membership interests other Person, or make any loans or advances; or, except in the ordinary course of business consistent with past practice, enter into any transaction relating to the purchase of assets. (i) Exercise commercially reasonably efforts not to incur any obligation to accept delivery or pay for any Fuel Oil after the Closing Date and (ii) not incur any obligation to deliver, provide or make available any energy, capacity or ancillary services after the Closing Date (in each case based upon Seller’s good faith estimate as to the timing of the Closing Date). (r) Exercise commercially reasonably efforts to have a total Fuel Inventory (measured to the extent in excess of 200,000 gallons below the load line) of not less than 1,500,000 and of not more than 4,500,000 gallons, as of the Closing Date (based upon Seller’s good faith estimate as to the timing of the Closing Date); provided that this clause (r) shall not require the Company to forego or diminish any opportunities to deliver, provide or make available any energy, capacity or ancillary services on or before the Closing Date. provided, that nothing in this Section shall (i) obligate Seller to make or cause the Company to make expenditures other than in the ordinary course of business consistent with past practices or to otherwise suffer any material economic detriment; or (ii) preclude Seller, or the Company from instituting, participating in or completing any program designed to promote compliance or comply with Laws or other equity interestsgood business practices with respect to the Facility.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 of (a) From the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination date of this Agreement to the Closing Date, except as expressly provided in Article VIIIherein, Contributor shall, Sellers will use its commercially reasonable efforts to cause the Company and shall cause its Subsidiaries to: each Acquired Subsidiary to (ai) operate conduct the Assets in all material respects operations and affairs of the Business in the Ordinary Course of Business and use their commercially reasonable efforts not to preserve the present business operations and organization relating create, perform or suffer to the Assets; exist any Restricted Event, (bii) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use its exercise commercially reasonable efforts to preserve intact its current material business organization, personnel, customer and supplier relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (d) comply in all material respects with all Law to which the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose goodwill of the Membership Interests or any Business, except, in either case, for actions: (A) taken with Buyer’s prior written consent, (B) to prepare for the consummation of the Assets other than the sale of inventory in the Ordinary Course of Business; (f) not create or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (g) not take any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby by this Agreement, (C) required to be taken by applicable Law, (D) disclosed in the Disclosure Schedule, or thereby;(E) to divest of the Excluded Assets or to otherwise consummate the Separation Transactions. (hb) except as required by Law, not take any action that would reasonably be expected to result in any From the date of the conditions this Agreement to the Closing set forth in Article VI Date, Sellers will not, and will cause the Company and each Acquired Subsidiary not being satisfied; to, directly or indirectly: (i) not agree enter into or continue any substantive negotiations, discussions or Contracts contemplating or relating to take the acquisition by any action prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtednessPerson other than Buyer of all or any part of the Shares then outstanding or the securities, equity interests, or incur substantially all of the assets of the Company or any obligation Acquired Subsidiary (regardless of the form of the transaction), but excluding sales of inventory or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements miscellaneous assets in the Ordinary Course of Business; or or (kii) not permit Kemmerer except with the prior written consent of Buyer, take an action that would constitute a Restricted Event. As of or prior to issue the Closing, (i) Sellers shall cause the Company and the Acquired Companies to distribute, assign, convey, deliver or sell otherwise transfer, to Sellers or their Affiliates (other than the Company and the Acquired Subsidiaries) all right, title and interest in, to or under all Excluded Assets, free and clear of all Encumbrances, except Encumbrances in place on the date hereof or hereafter created without any membership interests action by Buyer. All such transfers shall be made without any representations, warranties or other equity interestsobligations or duties on the part of any of the Company or the Acquired Subsidiaries (other than those set forth herein, in the TSA or any other Transaction Document) and (ii) Sellers shall (or shall cause a their Affiliates (other than the Company and the Acquired Subsidiaries) to) assume, pay, perform, discharge and be responsible for the Excluded Liabilities. For the avoidance of doubt, Excluded Assets and Excluded Liabilities will not be taken into account for the purposes of the calculation of the Estimated Closing Date Net Working Capital Adjustment, the Estimated Closing Date Cash, the Closing Date Debt, the Final Closing Date Net Working Capital or the Final Closing Date Cash. The transfers contemplated and described in this Section 4.1(c) together with the Other Separation Transactions and the transactions contemplated by the TSA shall hereinafter be referred to, collectively, as the “Separation Transactions”. Xxxx X. Xxxxx agrees to cause the Excluded Business to discontinue to use the trademarks NUTRA-FLO and XXX XXX for the Excluded Business in the case of any jurisdiction other than China, no later than 12 months after the Closing Date, and in the case of China within a period of 24 months after the Closing Date. Buyer acknowledges that Sellers indirectly own an interest in a joint venture in China which is part of the Excluded Assets which, pursuant to a sublicense, has limited rights to use NUTRA-XXX xxxxx in its feed business in China. Xxxx X. Xxxxx agrees to cause the Excluded Business to use commercially reasonable efforts to cause the referenced joint venture to discontinue its use of the marks licensed to it under the sublicense in the time period provided above.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Prior to consummation of the Contributor Disclosure Schedules transactions contemplated hereby or the termination or expiration of this Agreement pursuant to its terms, unless Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed, and except (i) for actions which are required by Law, (ii) for reasonable actions taken in connection with any emergency or other force majeure event of which Purchaser receives prompt notice, (iii) for actions which arise from or are primarily related to any of the Excluded Assets or the Retained Liabilities, (iv) as otherwise expressly provided contemplated by this Agreement or (v) as would not have a Material Adverse Effect, Seller shall use its Commercially Reasonable Efforts to operate and maintain the Facility in all material respects in accordance with the prior written consent its ordinary course of the Partnership, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor shallbusiness consistent with past practices, and shall cause its Subsidiaries toSeller shall: (a) operate the Assets except as required by their terms, not amend, terminate, renew or renegotiate in all any material respects in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assetsrespect any existing Facility Contract; (b) with respect not sell, lease, transfer or dispose of, or make any contract for the sale, lease, transfer or disposition of, any material portion of the Purchased Assets, except sales, leases, transfers or dispositions in the ordinary course of business and a sale of the Xxxxxxxx Option Property pursuant to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior yearsXxxxxxxx Option; (c) use not amend its commercially reasonable efforts Charter Documents except for amendments which do not impair Seller’s ability to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with consummate the Partnership or any of its Subsidiariestransactions contemplated hereby; (d) comply not create any Encumbrance (except Permitted Encumbrances) on the Purchased Assets other than in all material respects with all Law to which the Assets are subjectordinary course of its business; (e) not sell, transfer, assign, convey or otherwise dispose of maintain in force and effect the Membership Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Businessmaterial Facility Insurance Policies; (f) not create or permit subject to Section 6.7, maintain the creation of any Lien Personal Property in the same condition in all material respects as exists on the Membership Interests or any of the Assets other than Permitted LiensClosing Date, ordinary wear and tear excepted; (g) not take make any action that would materially adversely affect, or impede or impair, material change in the ability levels of Inventory maintained at the Parties to consummate Facility except in accordance with the transactions contemplated hereby or therebyordinary course of business consistent with past practices; (h) except as required by Lawuse Commercially Reasonable Efforts to maintain customary business relationships with any lessor, not take any action that would reasonably be expected to result licensor, customer, or supplier of Seller, each in any accordance with ordinary course of the conditions to the Closing set forth in Article VI not being satisfied;business consistent with past practices; and (i) not agree give notice to take Purchaser as soon as practicable after becoming aware of any action prohibited by material breach of (i) any of the representations or warranties of Seller contained in this Agreement or (ii) any of the covenants of Seller contained in this Agreement; provided that nothing in this Section 5.2; shall (ji) not permit Kemmerer obligate Seller to increase its indebtednessmake expenditures other than in the ordinary course of business consistent with past practices or to otherwise suffer any economic detriment, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (kii) not permit Kemmerer to issue or sell any membership interests or other equity interestspreclude Seller from expending funds for such maintenance and Capital Expenditures as Seller deems necessary.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 (a) From the date of the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIIIEffective Time, Contributor shall, Sellers will use their commercially reasonable efforts to cause each Company to conduct its operations and shall cause its Subsidiaries to: (a) operate the Assets in all material respects affairs in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use its exercise commercially reasonable efforts to preserve intact its current material relationships business organization, personnel and all material contractual and other goodwill, except, in any case, for actions: (i) taken with Buyer’s prior written consent (which consent will not be unreasonably withheld, delayed or conditioned); (ii) expressly permitted or required by this Agreement; (iii) required to be taken by applicable Law; (iv) contemplated by this Agreement; or (v) described on Exhibit 4.1. Certain of the actions described on Exhibit 4.1 involve the release of guarantees, credit enhancements, performance assurances, similar obligations with or direct obligations made in the favor of third parties made by Xxxxx Company or other Non-Company Affiliates which relate to the Business and were incurred for the benefit of the Business. To the extent such releases cannot be obtained without a guarantee by Buyer, Buyer will provide such guarantee; provided, however, that Buyer will not be required to provide a guarantee with respect to (including material customers and suppliersA) having business dealings with Closing Date Debt (whether listed on Exhibit 4.1 or not); (B) guarantees of liabilities for which a Company is not the Partnership primary obligor (although Buyer will provide substitute guarantees if Xxxxx Company, another Non-Company Affiliate or any of its Subsidiaries; their respective Affiliates is the primary obligor but only to the extent the obligations relate to the Business); or (dC) comply in all material respects with all Law obligations not related to which the Assets are subject; (e) Business or not sell, transfer, assign, convey or otherwise dispose of the Membership Interests or any of the Assets other than the sale of inventory related to Contracts entered into in the Ordinary Course of Business;. (fb) Without limiting the generality of Section 4.1(a), from the date of this Agreement until the Closing Effective Time, Sellers will not, and will cause each Company not create to, directly or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (g) not indirectly, take any action within the control of Sellers or such Company that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as have required by Law, not take any disclosure on Schedule 2.5 had such action that would reasonably be expected to result in any of the conditions occurred prior to the Closing set forth in Article VI not being satisfied; date hereof, except for actions: (i) taken with Buyer’s prior written consent (which consent will not agree to take any action prohibited be unreasonably withheld, delayed or conditioned); (ii) expressly permitted or required by this Section 5.2;Agreement; (iii) required to be taken by applicable Law; (iv) contemplated by this Agreement; or (v) described on Exhibit 4.1. (jc) not permit Kemmerer From the date of this Agreement until the Closing Effective Time, Sellers will, and will cause each Company and their respective Affiliates and Representatives to, cease any and all discussions or negotiations with any Person other than Buyer and its Affiliates and Representatives with respect to, and to increase deal exclusively with Buyer and its indebtednessAffiliates and Representatives regarding, any acquisition of, or incur investment in, any obligation or liabilityCompany, direct or indirectwhether by way of merger, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests consolidation or other business combination with any other Person, purchase or exchange of equity interests.interests (including the Equity Interests), purchase of assets or otherwise (an “Alternative Transaction”). From the date of this Agreement until the Closing Effective Time, without the prior written consent of Buyer, Sellers will not, and will cause each Company and its Affiliates and Representatives not to (directly or indirectly):

Conduct Pending Closing. (a) Except as specifically identified otherwise on Schedule 5.2 5.2(a) of the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 the date hereof until the Closing or termination of this Agreement as provided in Article VIII, Contributor shall, and shall cause its Subsidiaries to: (ai) operate the Assets in all material respects in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (bii) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (ciii) comply in all material respects with all Law to which the Assets are subject; (iv) not sell, transfer, assign, convey or otherwise dispose of the WKFCH Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Business; (v) not create or permit the creation of any Lien on the WKFCH Interests or any of the Assets other than Permitted Liens; (vi) not take any action which would adversely affect, or impede or impair, the ability of the Parties, or any of the actual or contemplated parties to any other Transaction Document, to consummate the transactions contemplated hereby or thereby; (vii) except as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the Closing set forth in Article VI not being satisfied; or (viii) not agree to take any action prohibited by this Section 5.2(a). (b) Except as specifically identified otherwise on Schedule 5.2(b) of the Partnership Entities Disclosure Schedules or as otherwise expressly provided by this Agreement, actions required to be taken in connection with the transactions contemplated in the Purchase Agreement or with the prior written consent of Contributor (which consent shall not be unreasonably withheld, conditioned or delayed) from the date hereof until the Closing or termination of this Agreement as provided in Article VIII, the Partnership shall, and shall cause its Subsidiaries to: (i) operate in all material respects in the Ordinary Course of Business and use their commercially reasonable efforts to preserve their present business operations and organization (including key employees); (ii) maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (iii) use its their commercially reasonable efforts to preserve intact its their current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (div) comply in all material respects with all Law to which the Assets Partnership or any of its Subsidiaries are subject; (ev) not sell, transfer, assign, convey or otherwise dispose of the Membership Interests or any assets of any of the Assets Partnership Entities other than (A) the sale of inventory in the Ordinary Course of BusinessBusiness or (B) the sale or other disposition of equipment or other personal property which is replaced with equipment or other personal property of comparable or better value and utility; (fvi) not create or permit the creation of any Lien on the Membership Interests or any asset of any of the Assets Partnership Entities other than Permitted Liens; (gvii) not enter into any collective bargaining agreement or similar contract with any labor union or representative or with respect to which any of the Partnership Entities could have any liability; (viii) except as required by Law, or as specifically agreed to in writing between the Partnership and Contributor as part of the transactions contemplated hereby, (A) not enter into any new or amend any existing compensatory plan, agreement or arrangement for the benefit of any employee of any of the Partnership Entities or in which any employee of any of the Partnership Entities participates or with respect to which any of the Partnership Entities could have any material liability or (B) increase the salary, wages, bonuses or other compensation or benefits of any employee of any of the Partnership Entities by more than 10% as compared to the level as of the date of this Agreement; (ix) not make or change any election in respect of Taxes, amend any Tax Return, adopt or change any accounting method in respect of Taxes (other than changes required by Law), or settle or compromise any Tax liability, in each case, other than those adoptions, changes, elections, settlements, or compromises which would reasonably be expected to not materially increase the Tax liability of the Partnership or any direct or indirect owner of the Partnership for any taxable period beginning after the Closing Date; (x) use their commercially reasonable efforts to maintain their insurance policies consistent with past practice; (xi) except for any Contract entered into, terminated or amended in the Ordinary Course of Business or that individually would not reasonably be expected to involve expenditures or revenues in excess of $250,000, (A) not enter into any Contract that could constitute a Partnership Material Contract, (B) not grant any waiver of any material term under, or give any material consent with respect to, any Partnership Material Contract, or (C) not modify, amend or terminate any Partnership Material Contract; (xii) settle, release or compromise any pending or threatened adverse litigation for an amount that would reasonably be expected to be greater than $250,000, but in each case, only to the extent not covered by insurance or third-party indemnification; (xiii) not engage in any new line of business; (xiv) not amend the Partnership Agreement (other than the Contribution Partnership Agreement Amendment); (xv) take any action that would materially adversely affect, or impede or impair, the ability cause to occur any of the Parties to consummate the transactions contemplated hereby changes, events or therebyconditions that would be a breach of Section 4.11; (hxvi) except as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the Closing set forth in Article VI not being satisfied; (ixvii) use commercially reasonable efforts to resolve any Proceedings to which the Partnership or any of its Affiliates is a party or is otherwise named pending before a Governmental Authority to Contributor’s reasonable satisfaction (including without limitation entering into an administrative or other agreement) to resolve any existing or potential debarment with respect to transactions involving any Governmental Authority and to provide that no event exists in connection therewith that could operate as a permit block or preclusion from obtaining any permit or authorization from any Governmental Authority; or (xviii) not agree to take any action prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interests5.2(b).

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 (a) From the date of this Agreement to the earlier to occur of the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with Closing Date and the prior written consent of the Partnership, from June 1, 2015 until the Closing or valid termination of this Agreement as provided in Article VIIIaccordance with its terms, Contributor shall, the Acquired Companies will conduct their respective operations and shall cause its Subsidiaries to: (a) operate the Assets in all material respects affairs in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use its exercise commercially reasonable efforts to preserve intact its current material their businesses organization, personnel, customer and supplier relationships and all material contractual and other obligations goodwill, relationships with third parties regulators, except for actions: (i) taken with Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); (ii) required or permitted by this Agreement or otherwise reasonably necessary to prepare for the consummation of the transactions contemplated by this Agreement, (iii) required by Law (including material customers and suppliersany COVID-19 Measures), or (iv) having business dealings described on Schedule 4.1. (b) Without limiting the generality of Section 4.1(a), except for actions (i) taken with Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), (ii) required or permitted by this Agreement or otherwise reasonably necessary to prepare for the Partnership consummation of the transactions contemplated by this Agreement, (iii) required by Law (including any COVID-19 Measures), or (iv) described on Schedule 4.1, from the date of this Agreement to the earlier of the Closing Date or the valid termination of this Agreement, the Acquired Companies will not, directly or indirectly: (i) change or amend the Organizational Documents of any of its SubsidiariesAcquired Company; (dii) comply make or declare any dividend or distribution to the stockholders of the Company or make any other distributions in all material respects with all Law to which the Assets are subjectrespect of any Acquired Company’s capital stock or Equity Interests; (eiii) (A) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Equity Interests of the Acquired Companies, (B) amend any term of any Company Capital Stock or Subsidiary Securities (in each case, whether by merger, consolidation or otherwise) or (C) split, combine, reclassify, recapitalize or otherwise amend any terms of any shares of any Acquired Company’s capital stock or Equity Interests; (iv) purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock or other equity interests of the Acquired Companies, except for (i) the acquisition by any Acquired Company of any shares of capital stock or other equity interests of such Acquired Company in connection with the forfeiture or cancellation of such interests (including any forfeitures or cancellations pursuant to the Company Equity Plan on the terms as in effect as of the date hereof) and (ii) transactions solely between or among the Acquired Companies; (v) purchase or otherwise acquire any assets or make any capital expenditures, in each case that are material, individually or in the aggregate, to the Business, other than such acquisitions or capital expenditures that do not exceed $100,000, individually, or $500,000, in the aggregate; (vi) sell, assign, transfer, assignconvey, convey lease or otherwise dispose of the Membership Interests any material assets or any properties of the Assets Acquired Companies, except for (i) dispositions of obsolete or worthless equipment in the Ordinary Course of Business and (ii) transactions solely between or among the Acquired Companies; (vii) acquire any ownership interest in any real property; (viii) acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all or a material portion of the assets of, any corporation, partnership, association, joint venture or other than business organization or division thereof that would be material to the sale Acquired Companies, taken as a whole; (ix) make any loans or advances to any Person, except for (i) advances to employees, officers or independent contractors of inventory the Acquired Companies for indemnification, attorneys’ fees, travel and other expenses incurred in the Ordinary Course of Business, (ii) loans or advances solely between or among the Acquired Companies, and (iii) extended payment terms for customers in the Ordinary Course of Business; (fx) not create make or permit the creation change any election in respect of Taxes, amend, modify or otherwise change any filed Tax Return, adopt or request permission of any Lien on taxing authority to change any accounting method in respect of Taxes, enter into any closing agreement with a Governmental Body in respect of Taxes, settle any claim or assessment in respect of Taxes, surrender or allow to expire any right to claim a refund of Taxes, or consent to any extension or waiver of the Membership Interests limitation period applicable to any claim or assessment in respect of Taxes; (xi) issue any additional Company Capital Stock or securities exercisable for or convertible into Company Capital Stock or grant any additional equity or equity-based compensation, other than Company Capital Stock issuable upon the exercise of Company Options outstanding as of the date hereof; (xii) adopt a plan of, or otherwise enter into or effect a, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any Acquired Company (other than the Merger); (xiii) disclose or agree to disclose to any Person (other than Parent or any of its Representatives) any Proprietary Information of the Assets Acquired Companies other than Permitted Liensin the Ordinary Course of Business and pursuant to obligations to maintain the confidentiality thereof; (gxiv) authorize or agree that any of its material Intellectual Property may become subject to an Encumbrance (other than a Permitted Encumbrance) or sell, lease, license or otherwise dispose of any of its Intellectual Property rights other than licenses to Intellectual Property granted by the Acquired Companies in the Ordinary Course of Business; (xv) enter into or extend any collective bargaining agreement or similar labor agreement, or, other than as required by applicable Law, recognize any labor union, labor organization, works council, or group of employees of any of the Acquired Companies as the bargaining representative for any of their respective employees; (xvi) waive the restrictive covenant obligations of any current or former employee of any of the Acquired Companies; (xvii) implement any employee layoffs, early retirement programs, furloughs, or other voluntary or involuntary employment termination programs, other than individual terminations in the ordinary course of business; (xviii) (A) except as may be required by applicable Law or the terms of any existing Employee Benefit Plans, adopt, enter into, terminate, or amend any Employee Benefit Plan (other than offer letters, employment agreements, or other similar agreements with employees that are terminable at-will by the Company or any ERISA Affiliate, where the adoption, entry into, termination, or amendment with respect to such offer letter, employment agreement, or other similar agreement is in connection with an action that is not take otherwise prohibited by clauses (B) through (G) hereof) or any awards thereunder; (B) materially increase the compensation or benefits of any Acquired Company employee or pay any benefit not required by any such existing Employee Benefit Plan; (C) grant any severance, retention, change in control, or termination pay or other transaction-related compensation or benefits to any directors, managers, officers, employees, independent contractors; (D) terminate the employment or service of any employee or extend offers to engage any independent contractor, in either case, whose annual base compensation exceeds $150,000, other than due to cause or such individual’s death or disability, (E) grant any new equity awards to any directors, managers, officers, employees, or independent contractors, (F) accelerate the vesting or payment of compensation or benefits under any Company Employee Benefit Plan except as otherwise required by this Agreement, or (G) extend offers of employment to or hire any employee or independent contractor whose annual base compensation would exceed $150,000, or, in the case of any consultant or independent contractor, whose relationship with the Company would not be terminable without liability on prior notice of sixty (60) days or less; (xix) terminate, amend in a manner materially detrimental to any of the Acquired Companies, or allow to expire without renewal or replacement for similar coverage, any insurance policy insuring the Business, operations, directors, employees, or agents of any of the Acquired Companies, or any Company Product; or (xx) enter into any agreement or otherwise commit or agree to do any action that would materially adversely affectprohibited under this Section 4.1(b). (c) From the date of this Agreement to the earlier of the Closing and the valid termination of this Agreement in accordance with its terms, the Acquired Companies will and will direct their respective Affiliates and Representatives to cease any and all discussions or negotiations with any Person other than Parent and its designated Representatives with respect to, and to deal exclusively with Parent and its designated Representatives regarding, any transaction involving any acquisition of, or impede investment in, any Acquired Company, whether by way of merger, consolidation or impairother business combination with any other Person, purchase or exchange of Company Capital Stock or other Equity Interests, purchase, sale or license (other than non-exclusive licenses in the Ordinary Course of Business) of assets or otherwise (“Alternative Transaction”). For clarity, the ability Acquired Companies and their Affiliates and their respective Representatives may inform any Person making an offer related to an Alternative Transaction of the Parties terms of this Section 4.1(c) without being in breach of this Section 4.1(c). The Company shall promptly inform Parent of such offer received by or with respect to consummate any Acquired Company related to the Alternative Transaction and provide Parent with a true and complete copy thereof, including any related correspondence or other materials. From the date of this Agreement to the earlier of the Closing and the valid termination of this Agreement in accordance with its terms, the Acquired Companies will not, and will direct their respective Affiliates and Representatives not to (directly or indirectly): (i) solicit, initiate, knowingly encourage or respond to any proposal or inquiry from, or otherwise engage in any negotiations, discussions or other communications with, any other Person in contemplation of or relating to any Alternative Transaction; (ii) provide or furnish information or documentation to any other Person with respect to any of the Acquired Companies or the Business or Assets in furtherance of any Alternative Transaction; or (iii) enter into any letter of intent, Contract or understanding with any other Person in respect of any Alternative Transaction. (d) The Company will promptly notify the Parent of (i) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby herein; (ii) any notice or thereby; other communication from any Governmental Body in connection with the transactions contemplated herein; (hiii) except as any Proceedings commenced or, to the Company’s Knowledge threatened, against, relating to or involving or otherwise affecting any of the Acquired Companies (A) that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to any section of Article 2, or (B) that relate to the consummation of the transactions contemplated herein; and (iv) any circumstance that would cause or constitute an inaccuracy in, or breach of, any representation made by Lawthe Company or any breach of any covenant of the Company under this Agreement, not take any action in each case, that would reasonably be expected to result in any of cause the conditions to the Closing set forth in Article VI Section 5.1 not being to be satisfied; ; and (iv) not agree any notice of resignation or retirement received from any employee of any Acquired Company with a title of vice president or higher; provided, however, that the delivery of any notice pursuant to take any action prohibited by this Section 5.2; (j4.1(d) will not permit Kemmerer limit or otherwise affect the remedies available under this Agreement to increase its indebtednessthe Parent; provided, further, that any failure of the Company to provide notice under this Section 4.1(d) with respect to any breach of a representation or incur warranty shall not give rise to any obligation or liability, direct or indirect, other than the incurrence indemnifiable claim for a breach of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsa covenant under Article 7.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 (a) From the date of the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIIIEffective Time, Contributor shall, Sellers will use their commercially reasonable efforts to cause each Company to conduct its operations and shall cause its Subsidiaries to: (a) operate the Assets in all material respects affairs in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use its exercise commercially reasonable efforts to preserve intact its current material relationships business organization, personnel and all material contractual and other goodwill, except, in any case, for actions: (i) taken with Buyer’s prior written consent (which consent will not be unreasonably withheld, delayed or conditioned); (ii) expressly permitted or required by this Agreement; (iii) required to be taken by applicable Law; (iv) contemplated by this Agreement; or (v) described on Exhibit 4.1. Certain of the actions described on Exhibit 4.1 involve the release of guarantees, credit enhancements, performance assurances, similar obligations with or direct obligations made in the favor of third parties made by Xxxxx Company or other Non-Company Affiliates which relate to the Business and were incurred for the benefit of the Business. To the extent such releases cannot be obtained without a guarantee by Buyer, Buyer will provide such guarantee; provided, however, that Buyer will not be required to provide a guarantee with respect to (including material customers and suppliersA) having business dealings with Closing Date Debt (whether listed on Exhibit 4.1 or not); (B) guarantees of liabilities for which a Company is not the Partnership primary obligor (although Buyer will provide substitute guarantees if Xxxxx Company, another Non-Company Affiliate or any of its Subsidiaries; their respective Affiliates is the primary obligor but only to the extent the obligations relate to the Business); or (dC) comply in all material respects with all Law obligations not related to which the Assets are subject; (e) Business or not sell, transfer, assign, convey or otherwise dispose of the Membership Interests or any of the Assets other than the sale of inventory related to Contracts entered into in the Ordinary Course of Business;. (fb) Without limiting the generality of Section 4.1(a), from the date of this Agreement until the Closing Effective Time, Sellers will not, and will cause each Company not create to, directly or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (g) not indirectly, take any action within the control of Sellers or such Company that would materially adversely affecthave required disclosure on Schedule 2.5 had such action occurred prior to the date hereof, except for actions: (i) taken with Buyer’s prior written consent (which consent will not be unreasonably withheld, delayed or conditioned); (ii) expressly permitted or required by this Agreement; (iii) required to be taken by applicable Law; (iv) contemplated by this Agreement; or (v) described on Exhibit 4.1. 37 (c) From the date of this Agreement until the Closing Effective Time, Sellers will, and will cause each Company and their respective Affiliates and Representatives to, cease any and all discussions or negotiations with any Person other than Buyer and its Affiliates and Representatives with respect to, and to deal exclusively with Buyer and its Affiliates and Representatives regarding, any acquisition of, or impede investment in, any Company, whether by way of merger, consolidation or impairother business combination with any other Person, purchase or exchange of equity interests (including the ability Equity Interests), purchase of assets or otherwise (an “Alternative Transaction”). From the Parties date of this Agreement until the Closing Effective Time, without the prior written consent of Buyer, Sellers will not, and will cause each Company and its Affiliates and Representatives not to consummate (directly or indirectly): (xxxv) solicit, initiate, encourage, facilitate or respond to any proposal or inquiry from, or otherwise engage in any negotiations, discussions or other communications with, any other Person in contemplation of or relating to any Alternative Transaction; (xxxvi) provide or furnish information or documentation to any other Person with respect to any Company or the transactions contemplated hereby Business in furtherance of any Alternative Transaction; or thereby; (hxxxvii) except as required enter into any letter of intent, Contract or understanding with any other Person in respect of any Alternative Transaction. In addition to the other obligations under this Section 4.1, Sellers will promptly (and in any event within three Business Days after receipt thereof by LawSellers or their respective Representatives) advise Buyer orally and in writing of any proposal for an Alternative Transaction (a “Proposal”), not take any action that would request for information with respect to any Proposal, or any inquiry with respect to or which could reasonably be expected to result in any a Proposal, the material terms and conditions of such request, Proposal or inquiry, and the identity of the conditions Person making the same. Sellers agree that the rights and remedies for noncompliance with this Section 4.1 will include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach may cause irreparable injury to Buyer and that money damages would not provide an adequate remedy to Buyer (d) Without limiting the generality of Section 4.1(a), from the date of this Agreement until the Closing set forth in Article VI not being satisfied; (i) not agree Effective Time, Sellers will cause the Companies to take any action prohibited by this Section 5.2; (j) not permit Kemmerer continue to increase its indebtednessmaintain, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or , their respective Owned Real Property and Leased Real Property, buildings, structures and other improvements and material machinery and equipment (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsas applicable).

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 (a) From and after the date hereof until the earlier of the Contributor Disclosure Schedules Closing or as otherwise the termination of this Agreement pursuant to Article XII, each Seller shall and shall cause its Seller Subsidiaries, if any, to, except for those actions expressly provided contemplated or required to be taken by this Agreement or with as consented to by Purchaser in writing: (i) conduct or cause to be conducted the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination of this Agreement Business as provided in Article VIII, Contributor shall, currently conducted and shall cause its Subsidiaries to: (a) operate the Assets in all material respects only in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis course consistent with prior years; past practice; (cii) use its commercially reasonable best efforts to (A) keep available for Purchaser the services of the present officers, employees, consultants, agents and representatives of the Sellers and the Seller Subsidiaries, and (B) preserve intact the business organization, Assets, ongoing business and goodwill and keep its current material relationships with its customers, suppliers, licensors, licensees, advertisers, contractors and all material contractual and other obligations with third parties (including material customers and suppliers) others having business dealings relations with the Partnership or any of its Subsidiaries; Sellers in accordance with past practice; (diii) comply in all material respects with all Law applicable Laws affecting or relating to which the Assets are subject;Business; and (iv) maintain in good standing all Operating Licenses and other material required Permits held by such Seller in respect of the Business on a timely basis. (eb) From and after the date hereof until the earlier of the Closing or the termination of this Agreement pursuant to Article XII, none of the Sellers shall, and the Sellers shall not cause or permit their respective Seller Subsidiaries to, except as expressly contemplated or required by this Agreement or as consented to by Purchaser in writing: (i) take or omit to take any action which would result in the representations and warranties contained in this Agreement or the Related Documents being untrue in any material respect (or in the case of representations and warranties which are qualified as to materiality, untrue in any respect) on the Closing Date; (ii) by action or inaction, abandon, terminate, cancel, forfeit, waive or release any of any Seller’s material rights, in whole or in part, with respect to the Purchased Assets, or sell, transferlease, assignlicense, convey transfer or otherwise dispose of the Membership Interests or mortgage, pledge or otherwise suffer to exist any Encumbrance on any of the Purchased Assets other than the sale of inventory Permitted Encumbrances identified on Schedule 5.10(b) hereto; (iii) modify, amend or terminate any Contract that is included in the Ordinary Course Purchased Assets or waive, release or assign any material rights or claims thereunder or permit any of Business; the foregoing to occur; (fiv) not create effect any merger, business combination or similar transaction or take any other action, corporate or otherwise, which might affect any Seller’s ability to perform in accordance with this Agreement; (v) cancel or permit the creation cancellation or lapse of any Lien insurance coverage on the Membership Interests Purchased Assets or the Business; (vi) take any action or enter into any agreement with any Governmental Entity, whether or not related to any Permits; (vii) settle any dispute or threatened dispute with any Governmental Entity or party to any Assigned Contract; (viii) except in the ordinary course of business, grant any increase in salary or benefits of any officer, director, manager, or employee or pay any special bonus to any Person, enter into or modify any employment offer, employment loss, employment status or severance agreement or grant any severance or termination pay (other than pursuant to severance arrangements or policies as in effect on the date of this Agreement), establish, adopt, enter into, amend or terminate any Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Plan if it were in existence as of the date of this Agreement except as required by applicable Law, but only to the extent that any such action would affect Seller Employees, or make any loan or advance to, or enter into any Contract with, any director, manager, officer, employee or consultant of any Seller or Seller Subsidiary; (ix); make any material Tax election or settle or compromise any material income Tax Liability; (x) change its practices, policies or procedures with respect to the timing of the payment of accounts payable or the collection of accounts receivable; (xi) enter into any tolling agreement to extend the statute of limitations with respect to any Liabilities of the Sellers; (xii) modify, amend or terminate any Plan or Other Arrangement; (xiii) take any other action which might affect an Assumed Liability; (xiv) make any alterations or improvements to the Fountains Resource Center, the Cedar Pxxxx Facility or the Millbrook Gatehouse or make any capital expenditure with respect thereto in excess of $100,000 not included in the Seller 2005 Capital Expenditure Budget; (xv) enter into any Resident Agreements outside the ordinary course of business; or (xvi) agree or otherwise commit to take any of the Assets other than Permitted Liens;actions set forth above. (gc) The Stockholder shall not take any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result in cause any of the conditions to the Closing set forth in Article VI not being satisfied; (i) not agree Sellers or any of their respective Seller Subsidiaries to take any action prohibited by this inconsistent with the purposes of Sections 7.2(a) and (b) above and Section 5.2;7.2(d) below. (jd) Notwithstanding anything in Section 5.10(a) of the Agreement, to the extent that any Seller Subsidiary that is not permit Kemmerer a party to increase its indebtedness, this Agreement has any rights with respect to any Assets that are used in the operation of the Facilities or incur any obligation or liability, direct or indirect, the conduct of the Business (other than intercompany accounts, whether or not represented by promissory notes), the incurrence of liabilities Sellers shall cause such Assets (and any related rights) to be transferred or conveyed as Purchased Assets pursuant to existing agreements in this Agreement or the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsFacilities Purchase and Sale Agreement.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Prior to consummation of the Contributor Disclosure Schedules Transactions or the termination or expiration of this Agreement pursuant to its terms, unless Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed, and except (i) for actions which are required by Law, (ii) for reasonable actions taken in connection with any emergency force majeure event and promptly disclosed in writing to Purchaser, (iii) for actions which arise from or are related to any of the Excluded Assets or the Excluded Liabilities or the anticipated transfer of the Purchased Assets, or (iv) as otherwise expressly provided contemplated by this Agreement or with the prior written consent of the Partnershipdisclosed in Schedule 6.4, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor Seller shall, and shall cause its Subsidiaries to: (a) operate Operate and maintain the Assets Project, or cause the Project to be operated and maintained, in all material respects in accordance with (i) the Ordinary Course ordinary course of Business business consistent with past practices and use their commercially reasonable efforts to preserve Accepted Electrical Practices, and (ii) applicable Laws, including Environmental Laws, expending not less than 85 percent of the present business operations amounts budgeted therefor in the Cap Ex/O&M Budget; and organization relating to make such expenditures and the Assetsrelated capital improvements and additions in the amounts and at the times set forth in the Cap Ex/O&M Budget; (b) with respect Not amend, terminate, renegotiate or renew either of the LTSAs, or amend, terminate, renegotiate or, except as required by their terms, renew any Purchased Project Contract, or enter into any new Project Contract that would (if it existed on the date hereof) have been required to the Assets, maintain books, accounts and records be listed in Schedule 4.7 other than "Additional Project Documents" (as defined in the usualSenior Loan Documents), regular and ordinary manneror default (or take or omit to take any action that, on with the giving of notice or passage of time or both, would constitute a basis consistent with prior yearsdefault or give rise to a right of termination) under Seller's obligations under either of the LTSAs, or any Purchased Project Contract; (c) use its commercially reasonable efforts Not sell, lease, transfer or dispose of, or make any contract for the sale, lease, transfer or disposition of, any material assets or properties which would be included in the Purchased Assets, except sales, leases, transfers or dispositions of Inventory in the ordinary course of business consistent with past practices and Accepted Electrical Practices and which, individually or in the aggregate, could not reasonably be expected to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiarieshave a Material Adverse Effect; (d) comply Not permit the sale or otherwise permit the transfer, directly or indirectly (whether by assignment, merger, other business combination or otherwise), to any third-party of Seller or all or substantially all of the assets of Seller, or suffer to exist or occur any direct or indirect change in all material respects with all Law to which the Assets are subjectownership of Seller; (e) not sell, transfer, assign, convey Not (i) incur any obligations for borrowed money or guarantee or otherwise dispose become liable for the obligations of, or make any loans or advances to, any Person, except as would after the Closing constitute an Excluded Liability or (ii) delay the payment or discharge of any liability or obligation to GEII under either of the Membership Interests LTSAs or any which, upon the Closing, would be an Assumed Liability, whether because of the Assets other than Transactions or otherwise, provided that Seller may delay the sale payment or discharge of inventory any liability or obligation the validity of which Seller is disputing or contesting in good faith, to the extent such delay is in compliance with Seller's obligations under Section 6.4(b) and could not reasonably be expected to adversely affect, in any material respect, the operations, maintenance or physical condition of the Project, and such liability or obligation, and any liability or obligation arising from Seller's delay in the Ordinary Course of Businesspayment or discharge thereof, constitute Excluded Liabilities; (f) not create Except as otherwise required by the terms of the Employee Plans or permit the creation of any Lien on the Membership Interests applicable Law, not, and cause Guarantor, CGS or any of their Affiliates not to, (i) materially increase the Assets salaries or wages of Employees prior to the Closing, (ii) take any action prior to the Closing to effect a material change in the Employee Plans or enter into or otherwise become bound by any Collective Bargaining Agreement relating to the terms of employment of any Employees or otherwise relating in any manner to the Project, (iii) take any action prior to the Closing to materially increase the aggregate benefits payable to Employees or (iv) hire, or transfer to the Project, any new Employees or Independent Contractors (other than Permitted Liensthose Independent Contractors engaged on behalf of the Agent and the Banks pursuant to the Senior Loan Documents) prior to the Closing, other than to fill vacancies in existing positions in the reasonable discretion of Seller; (g) not take Not grant any action that would materially adversely affectEncumbrance on any Purchased Assets, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or therebyexcept Permitted Encumbrances; (h) except as required by Law, not take any action that would reasonably Maintain or cause to be expected to result maintained in any of force and effect the conditions material property and liability insurance policies related to the Closing set forth in Article VI not being satisfiedProject; (i) Not make any material change in the levels of Inventory maintained at the Project except in accordance with the ordinary course of business consistent with past practices and Accepted Electrical Practices, and (ii) ensure that the inventory of Consumables reflected on the Closing Inventory Report shall not agree to take any action prohibited by this Section 5.2be less than the inventory of Consumables reasonably necessary for the operation of the Project (assuming operation of the Project at a fifty percent (50%) capacity factor) for not less than the sixty (60) day period following the Closing; (j) not permit Kemmerer Use Commercially Reasonable Efforts to increase its indebtednessmaintain customary business relationships with any lessor, licensor, or incur any obligation or liabilitysupplier of Seller to the extent relating to the Project and customary relations with Employees, direct or indirect, other than each in accordance with the incurrence ordinary course of liabilities pursuant to existing agreements in the Ordinary Course of Business; orbusiness consistent with past practices; (k) Not take any action which would cause any of Seller's representations and warranties set forth in ARTICLE 4 to be untrue in any material respect as of the Closing; (l) Promptly give notice to Purchaser upon becoming aware of the occurrence or impending occurrence of any event which would (i) cause any of the representations of Seller contained herein to be untrue in any material respect or (ii) constitute a breach of any of the covenants of Seller contained in this Agreement; (m) Not resolve, settle or compromise any Environmental Condition, Environmental Claim or Environmental Liability, including without limitation with any Governmental Authority, except to the extent such resolution, settlement or compromise does not permit Kemmerer impose any post-Closing liabilities on Purchaser or require any post-Closing Remediation; and (n) Use best Commercially Reasonable Efforts to issue terminate, prior to Closing, the Little Xxxx Servitude. (o) Use Commercially Reasonable Efforts (i) to document, or sell cause to be documented, prior to the Closing, the complete terms of all Warranties the complete terms of which are not documented as of the Effective Date and (ii) to obtain assignments from third parties to Seller of all Warranties which, as of the Effective Date, are made to any membership interests Person other than Seller. Provided, however, that nothing in this Section 6.4 shall (i) obligate Seller to make expenditures other than in the ordinary course of business consistent with past practices, or other equity intereststo otherwise suffer any economic detriment, (ii) preclude Seller from paying, prepaying or otherwise satisfying any liability which, if outstanding as of the Closing Date, would be an Assumed Liability or an Excluded Liability, (iii) preclude Seller from incurring any liabilities or obligations to any third party in connection with obtaining such Party's consent to any transaction contemplated by this Agreement or the Ancillary Agreements provided such liabilities and obligations incurred under this clause (iii) shall be Excluded Liabilities pursuant to Section 2.4 hereof if not approved in advance by Purchaser (which approval shall not be unreasonably withheld or delayed) or (iv) preclude Seller from instituting, participating in or completing any program designed to promote compliance or comply with applicable Laws or Accepted Electrical Practices with respect to the Project or Purchased Assets.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 During the period from the Execution Date until the earlier of the Contributor Disclosure Schedules Closing Date or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor shall, and shall cause its Subsidiaries toAgreement: (a) operate None of the Assets in all material respects in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating XXX Parties shall require payment from any Xxxxxxxx Party (or its Affiliates) with respect to the AssetsDBJV Interest (for capital calls or otherwise), and XXX (or one of its Affiliates) shall fund on behalf of the Xxxxxxxx Parties any such amounts owing, provided, however, that if this Agreement is terminated without closing, the Xxxxxxxx Parties shall pay to XXX such amounts paid by XXX that would have otherwise have been required to be paid by the Xxxxxxxx Parties under the DBJV Interest; (b) None of the Xxxxxxxx Parties shall require payment from any XXX Party (or its Affiliates) with respect to the AssetsArea A Interest (for capital calls or otherwise), maintain booksand AMS (or one of its Affiliates) shall fund on behalf of the XXX Parties any such amounts owing, accounts and records in provided, however, that if this Agreement is terminated without closing, the usual, regular and ordinary manner, on a basis consistent with prior yearsXXX Parties shall pay promptly to AMS such amounts paid by AMS that would have otherwise have been required to be paid by the XXX Parties under the Area A Interest; (c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings Other than in accordance with the Partnership Area A ROFR, as contemplated by this Agreement, the XXX Parties shall maintain the Area A Interest unencumbered and unmodified and shall not vote or otherwise exercise rights under the Area A Interest in any manner inconsistent with the preservation of its Subsidiariesthe value of the Area A Interest or the consummation of the transactions contemplated by this Agreement; (d) comply The Xxxxxxxx Parties shall maintain the DBJV Interest unencumbered and unmodified and shall not vote or otherwise exercise rights under the DBJV Interest in all material respects any manner inconsistent with all Law to which the Assets are subject;preservation of the value of the DBJV Interest or the consummation of the transactions contemplated by this Agreement; and (e) not sell, transfer, assign, convey No Party will assign or otherwise dispose transfer to any Person whatsoever all or any part of the Membership Interests claims, demands, liabilities, responsibilities, disputes, causes of action or any of the Assets other than the sale of inventory in the Ordinary Course of Business; (f) not create or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (g) not take any action that would materially adversely affect, or impede or impair, the ability of the Parties obligations to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the released at Closing set forth in Article VI not being satisfied; (i) not agree to take any action prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsSection 9.1(d).

Conduct Pending Closing. Except as specifically identified (a) From the Effective Date through the Closing, unless Purchaser shall otherwise on Schedule 5.2 of the Contributor Disclosure Schedules or as otherwise expressly provided consent in writing, and except for (i) actions required by Law, (ii) actions permitted by this Agreement or with any Ancillary Agreement or necessary to consummate the prior written consent of Transactions and expressly contemplated hereunder or thereunder, and (iii) subject to the Partnership, from June 1, 2015 until the Closing or termination other terms of this Agreement as provided Agreement, reasonable actions taken in Article VIIIresponse to an emergency or an event of force majeure in accordance with Good Industry Practices and promptly disclosed in writing to Purchaser, Contributor Seller shall, and and, where applicable, shall cause its Subsidiaries to: Affiliates and Operator and, to the extent of its ability, GEII to conduct the Business and operate and maintain the Project (aor cause the Project to be operated and maintained) operate the Assets in accordance with all Laws and Permits in all material respects and in the Ordinary Course ordinary course of the conduct of the Business consistent with past practices and use their Good Industry Practices, including (A) operating and maintaining the systems, equipment, and machinery of the Project in compliance with all Laws and Permits in all material respects and Good Industry Practices, including compliance with the manufacturer’s technical requirements and information and, to the extent applicable, the LTSA in all material respects, and, with respect to any damage to any Purchased Asset other than due to a Casualty Event, and without limiting the other applicable terms of this Agreement, Repair such Purchased Asset fully consistent with requirements set forth in Section 6.8(d) and Section 6.8(e) (notwithstanding, in each case, that such damage to such Purchased Asset does not constitute a “Damaged Portion”), (B) making, or causing to be made, timely and complete application to the applicable Governmental Authority for the renewal of any Purchased Permit so as to effectuate such renewal reasonably prior to the scheduled expiration date of such Purchased Permit, and (C) using commercially reasonable efforts to preserve the present good will of Employees, lessors, suppliers, licensors, agents, contractors, and other Persons having a material business operations and organization relating relationship with Seller or any of its Affiliates with respect to the Assets;Project or the Business or Governmental Authorities having jurisdiction over the Project, the Project Real Property, or the Business. In addition, with respect to (1) each Contract entered into by Seller or any of its Affiliates from and after the Effective Date through the Closing that would be a Purchased Project Contract and (2) each Purchased Warranty obtained by Seller or any of its Affiliates from and after the Effective Date through the Closing, Seller shall, and where applicable shall cause its Affiliates to, use commercially reasonable efforts to cause each such Contract to permit Seller to freely assign, transfer, and/or convey such Purchased Project Contract or Purchased Warranty without the Consent of any Person, including, for the avoidance of doubt, without any requirement that Purchaser or any Affiliate of Purchaser enter into a new Contract with the counterparty to such Purchased Project Contract or Purchased Warranty or provide new consideration to such counterparty (or its designee) as a condition to the effectiveness of such assignment, transfer, and/or conveyance. (b) From the Effective Date through the Closing, unless Purchaser shall otherwise consent in writing, and except for actions required by Law, actions permitted by this Agreement or an Ancillary Agreement or necessary to consummate the Transactions or the transactions contemplated by the Ancillary Agreements and expressly contemplated hereunder or thereunder, and, subject to the other terms of this Agreement, reasonable actions taken in response to an emergency or an event of force majeure in accordance with Good Industry Practices and promptly disclosed in writing to Purchaser, Seller shall not, and, where applicable to the Purchased Assets or the Business, shall cause its Affiliates and Operator not to: (i) (A) amend, supplement, or otherwise modify in any material respect, or terminate or, except as required by its terms, renew or extend any Purchased Project Contract or Purchased Permit, (B) waive any material default by, material term of, or material right against, or release, settle, or compromise any material claim against, any other party to a Purchased Project Contract, the LTSA, or any other material Contract to which Seller or any of its Affiliates is a party arising out of or related to such Contract, except to the extent such waiver, release, settlement, or compromise relates solely to the payment or performance obligations of such other party during the period prior to the Closing and does not create any Assumed Liability or adversely affect, in any material respect, the use, operation, maintenance, or physical condition of the Purchased Assets or the conduct of the Business, or (C) enter into any new Purchased Project Contract, subject to Section 2.1(f); (ii) sell, lease, license, transfer, or otherwise dispose of, or remove from the Project, or make or enter into any Contract for the sale, lease, license, transfer, disposition, or removal of, any material asset or property that would be included in the Purchased Assets, except for (A) the disposition of Consumables, or the transfer, disposition, or removal of obsolete, broken, damaged, or worn-out assets or assets not in compliance with Laws or applicable Permits, in the ordinary course of the conduct of the Business consistent with past practices and Good Industry Practices, (B) any sale, lease, license, transfer, or disposition of such assets or properties made to Purchaser or its Affiliates, and (C) the conversion of Fuel into electric energy in the ordinary course of the conduct of the Business; (iii) permit, allow, or cause any of the Purchased Assets to become subject to any Encumbrance, other than a Permitted Encumbrance; (iv) resolve, settle, or compromise any Environmental Claim or any Action under any Law (including Environmental Law) pending before or being conducted by a Governmental Authority, arbitrator, or mediator relating to the Business or the Purchased Assets, except to the extent such resolution, settlement, or compromise is an Excluded Liability or would not (A) require or involve any material post-Closing Remediation or (B) have a material and adverse effect on Purchaser’s ownership, use or operation of, or the value of, the Purchased Assets, or Purchaser’s conduct of the Business, after the Closing; (v) (A) incur any obligation for borrowed money secured by the Purchased Assets other than extensions of credit and similar events in the ordinary course of the conduct of the Business or (B) except for credit support provided to Purchaser, guarantee with the Purchased Assets, or otherwise make the Business liable for, the obligations of any Person other than any obligations for borrowed money, extensions of credit, or guarantees that would be discharged on or prior to the Closing; (vi) delay beyond its due date the payment or discharge of any account payable or other Liability that, upon or after the Closing, would be an Assumed Liability or could reasonably be expected to adversely affect, in any material respect, the use, operation, maintenance, or physical condition of the Purchased Assets or the conduct of the Business; (vii) sell, transfer, swap, or otherwise make unavailable to Purchaser at the Closing any of the Emission Allowances, except for the surrender of Emissions Allowances to the issuing Governmental Authority in accordance with the requirements of Laws; (viii) make any material change to the levels of Inventory maintained at the Project or to the current approved or any future operating or capital budget for the Project, except in the ordinary course of the conduct of the Business consistent with past practices and in accordance with Good Industry Practices; (ix) change any method, practice, or principle of financial accounting that is material to the consummation of the Transactions or the obligations of the Parties hereunder, except as required by GAAP or Law; (x) make or change any election or registration with MISO with respect to the Assets, maintain books, accounts and records Project that would be applicable to the Project after the Closing except as required by this Agreement or the MISO Agreement or permitted in the usual, regular and ordinary manner, on a basis consistent with prior yearswriting signed by an authorized representative of Purchaser; (cxi) use its commercially reasonable efforts make any fundamental change to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (d) comply in all material respects with all Law to which the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose of the Membership Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Business; (fxii) not create hire any new Project Employee; provided, however, that Seller may hire new Project Employees to fill vacancies resulting from departures or permit as would otherwise reasonably be necessary to operate the creation of any Lien on the Membership Interests or any facility, upon prior written consent of the Assets other than Permitted LiensPurchaser, which consent shall not be unreasonably withheld; (gxiii) not take any action with respect to the compensation and/or benefits of, or conditions of employment of, any Project Employee, in each case that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would be reasonably be expected to result in any of the conditions increase in Liability to the Closing set forth in Article VI not being satisfiedPurchaser or its Affiliates; (ixiv) not authorize or commit to do or agree to take take, whether in writing or otherwise, any action of the foregoing prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Businessactions; or (kxv) without limiting Section 6.24(a)(iii), seek, or permit or allow any other Person to seek, NITS for the Project for a term that could survive the Closing or could have the effect of delaying the Closing. (c) Nothing in this Section 6.3 shall preclude Seller or any Affiliate of Seller from (i) paying, prepaying, or otherwise satisfying any Liability that, if outstanding as of the Closing Date, would be an Assumed Liability or an Excluded Liability, provided that no Assumed Liability that could reasonably be expected to adversely affect, in any material respect, the use, operation, maintenance, or physical condition of the Purchased Assets or the conduct of the Business is created or increased by or otherwise arises out of the satisfaction of such Liability, or (ii) incurring any Liability to any third party in connection with obtaining such party’s Consent to any Transaction, provided that any and all such Liabilities so incurred are Excluded Liabilities incurred in accordance with or are not permit Kemmerer to issue prohibited by the terms of this Agreement or sell any membership interests or other equity interestsAncillary Agreement.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Prior to consummation of the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor shall, and shall cause its Subsidiaries to: (a) operate the Assets in all material respects in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (d) comply in all material respects with all Law to which the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose of the Membership Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Business; (f) not create or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (g) not take any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or therebythe termination or expiration of this Agreement pursuant to its terms, and except to the extent approved by Purchaser, Seller shall: (i) Not: (A) sell, lease, transfer or dispose of, or make any contract for the sale lease, transfer or disposition of, any assets or properties which would be included in the Assets, other than sales in the ordinary course of business which would not, individually or in the aggregate, have a material adverse effect upon the operations or value of the Facilities or the Facilities Switchyard; (B) incur, assume, guaranty, or otherwise become liable in respect of any indebtedness for money borrowed, in each case which would result in Purchaser assuming such liability hereunder after the Closing; (C) other than as set forth in Section 6.12, delay the payment and discharge of any liability which, upon Closing, would be an Assumed Liability, because of the transactions contemplated hereby; or (D) encumber or voluntarily subject to any lien any Asset, except for Permitted Encumbrances; (hii) except as required by Law, not Not take any action that which would reasonably be expected to result in cause any of the conditions to the Closing Seller’s representations and warranties set forth in Article VI not being satisfied;4 to be materially false as of the Closing; and (iiii) not agree Execute and deliver, at the same time as the other Facilities Owners, Amendment No. 8 to take any action prohibited by this Section 5.2; (j) not permit Kemmerer Four Corners Project Co-Tenancy Agreement and Amendment No. 15 to increase its indebtednessFour Corners Project Operating Agreement, or incur any obligation or liability, direct or indirect, other than that each adjust the incurrence of liabilities pursuant to existing agreements parties' ownership percentages in the Ordinary Course Facilities effective at the time of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsClosing. The amendments shall be substantially in the form of the draft versions thereof dated February 12, 2015 which were reviewed and approved by Seller.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 of (a) From the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination date of this Agreement as provided in Article VIIIto the Closing Date, Contributor shallthe Company will, and shall Seller will cause its Subsidiaries the Company to: (a) operate , conduct the Assets in all material respects Business in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use its exercise commercially reasonable efforts to preserve intact its current material business organization, customer and supplier relationships and goodwill, except, in any case, for actions: (i) taken with Buyer’s prior written consent; (ii) expressly permitted or required by this Agreement or any other Transaction Document; (iii) required to be taken by applicable Law; (iv) that are reasonably necessary to prepare for the consummation of the transactions contemplated hereby; or (v) described on Schedule 5.1. (b) Without limiting the generality of Section 5.1(a), from the date of this Agreement to the Closing Date, the Company will not, and Seller will cause the Company not to, directly or indirectly, take any action within its control that would have required disclosure on Schedule 2.7 had such action occurred prior to the date hereof, except for actions: (i) taken with Buyer’s prior written consent; (ii) expressly permitted or required by this Agreement or any other Transaction Document; (iii) required to be taken by applicable Law; (iv) that are reasonably necessary to prepare for the consummation of the transactions contemplated hereby; or (v) described on Schedule 5.1. (c) During the Exclusivity Period, Seller and the Company will, and will cause their respective Affiliates and Representatives to, cease any and all material contractual discussions or negotiations with any Person other than Parent, Buyer and their designated Representatives with respect to, and deal exclusively with Parent, Buyer and their designated Representatives regarding, any acquisition of, or investment in, the Company or the Business, whether by way of merger, consolidation or other obligations business combination with third parties any other Person, purchase or exchange of equity interests (including material customers the Stock), purchase of assets or otherwise (an “Alternative Transaction”). During the Exclusivity Period, without the prior written consent of Buyer, Seller and suppliersthe Company will not, and will cause their respective Affiliates and Representatives not to (directly or indirectly): (i) having business dealings solicit, initiate, encourage or respond to any proposal or inquiry from, or otherwise engage in any negotiations, discussions or other communications with, any other Person in contemplation of or relating to any Alternative Transaction; (ii) provide or furnish information or documentation to any other Person with respect to the Partnership Company, the Business or the Assets in furtherance of any Alternative Transaction; or (iii) enter into any Agreement of its Subsidiaries;intent, Contract or understanding with any other Person in respect of any Alternative Transaction. (d) comply During the Exclusivity Period, Parent and Buyer will, and will cause their respective Affiliates and Representatives to, cease any and all discussions or negotiations with any Person other than Seller, the Company and their designated Representatives with respect to any acquisition transaction that would (1) reasonably be expected to prevent or delay in all any material respects respect the ability of Parent or Buyer to perform its obligations under and consummate the transactions contemplated by this Agreement or (2) require the use of any of Buyer’s or Parent’s available cash (a “Replacement Transaction”) for the acquisition of the Company as set forth in this Agreement. During the Exclusivity Period, without the prior written consent of Seller, Parent and Buyer will not, and will cause their respective Affiliates and Representatives not to (directly or indirectly): (i) solicit, initiate, encourage or respond to any proposal or inquiry from, or otherwise engage in any negotiations, discussions or other communications with, any other Person in contemplation of or relating to any such Replacement Transaction; (ii) provide or furnish information or documentation to any other Person with all Law respect to which the Assets are subject;Parent or Buyer in furtherance of any such Replacement Transaction; or (iii) enter into any Agreement of intent, Contract or understanding with any other Person in respect of any such Replacement Transaction. (e) On or before the 1st and 15th day (or the first Business Day thereafter if such day is not sella Business Day) of each calendar month during the term of this Agreement beginning on February 15, transfer2017, assignParent and Buyer shall confirm to Seller and the Company in writing (the “Confirmation”) that (1) Buyer remains willing and able to proceed with the transactions contemplated by this Agreement for the consideration and upon and subject to the other terms and conditions described in this Agreement and (2) no condition contained in Section 6.1 is reasonably unlikely to be satisfied on or before the Closing Date. In the event that Parent and Buyer do not timely deliver any such Confirmation to Seller and the Company, convey the obligations of Seller and the Company and their respective Affiliates contained in Section 5.1(c) shall automatically terminate and without any notice or otherwise dispose of other action by Seller or the Membership Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Business;Company; provided, however, such obligations shall automatically resume if and when such Confirmation is delivered. (f) If (1) Parent or Buyer determines not create to proceed with the Transaction for the consideration and upon and subject to the other terms and conditions described in this Agreement or permit (2) in Buyer’s opinion, any condition contained in Section 6.1 is reasonably unlikely to be satisfied on or before the creation Closing Date: (A) Parent and Buyer shall notify Seller and the Company within twenty-four (24) hours after becoming aware of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; foregoing and (gB) not take the obligations of Seller and the Company and their respective Affiliates contained in Section 5.1(c) will cease immediately and without any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the Closing set forth in Article VI not being satisfied; (i) not agree to take any action prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests notice or other equity interestsaction by Seller or the Company.

Conduct Pending Closing. (a) Except as specifically identified otherwise on Schedule 5.2 of the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement herein or with in Schedule 5.1, between the prior written consent of the Partnership, from June 1, 2015 until date hereof and the Closing or the earlier termination of this Agreement as provided in Article VIIIaccordance with its terms, Contributor shallunless Buyer otherwise consents in writing, and which consent shall not be unreasonably withheld or delayed, Seller shall cause its Subsidiaries the Company to: (ai) maintain its corporate existence, pay and discharge all debts, liabilities and obligations in the ordinary course of the Business as they become due (other than pursuant to the Loan Documents), and operate solely in the Assets ordinary course in a manner consistent with past practice and the provisions of this Agreement and in compliance in all material respects with all applicable Laws, Permits and Contracts; (ii) maintain its facilities and assets, including, without limitation, the Purchased Assets, in substantially the Ordinary Course same state of Business repair, order and condition as they were on the date hereof, reasonable wear and tear excepted; (iii) maintain its books and records in accordance with past practice, and use their commercially reasonable efforts to preserve the present business operations maintain in full force and organization relating to the Assetseffect all Permits and all Insurance Agreements; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (civ) use its commercially reasonable efforts to preserve intact the Company’s present business organization and maintain its current material relationships relations and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings goodwill with the Partnership suppliers, customers, employees and others having a business relationship with it; (v) deliver to Buyer, promptly after such statements become available, correct and complete copies of unaudited monthly balance sheets, income statements and operating reports for the Company for each month between the date hereof and the Closing Date; (vi) promptly advise Buyer in writing of the threat or commencement against the Company of any Claim, or any change, settlement, resolution or disposition of any existing Claim, by, against or affecting the Company or any of its Subsidiaries; (d) comply in all material respects with all Law to which operations, assets or prospects, or that challenges or may affect the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose validity of the Membership Interests this Agreement or any of Buyer Transaction Document, Seller Transaction Document or Company Transaction Document (together, the Assets other than the sale of inventory in the Ordinary Course of Business; (f“Transaction Documents”) not create or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (g) not take action taken or to be taken in connection with any action that would materially adversely affect, Transaction Document or impede or impair, the ability of the Parties Company or Seller to consummate the transactions contemplated hereby herein or therebytherein; (hvii) except as cooperate with Buyer to obtain prior to Closing, searches (the “Searches”), (A) in all appropriate jurisdictions, for state and federal tax liens, judgment liens, UCC financing statements and pending litigation against the Company or its assets, and (B) with the United States Patent and Trademark Office (and any similar Governmental Authority outside the United States) with respect to all Intellectual Property; and (viii) cooperate with Buyer and assist Buyer in identifying the Permits required by LawBuyer to operate the Business from and after the Closing Date and, not take where permissible, transfer existing Permits to Buyer at the Closing. (b) Between the date hereof and the Closing or the earlier termination of this Agreement in accordance with its terms, Seller shall promptly advise Buyer in writing of the threat or commencement against Seller of any Claim, or any change, settlement, resolution or disposition of any existing Claim, by, against or affecting Seller that challenges or may affect the validity of this Agreement or any Transaction Document or any action that would reasonably taken or to be expected taken in connection with any Transaction Document or the ability of Seller to result in any of consummate the conditions to the Closing set forth in Article VI not being satisfied; (i) not agree to take any action prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, transactions contemplated herein or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity intereststherein.

Conduct Pending Closing. Except (a) Other than as specifically identified otherwise on Schedule 5.2 set forth in Section 7.2 of the Contributor Seller Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the PartnershipSchedule, from June 1, 2015 and after the date hereof until the earlier of the Closing or the termination of this Agreement as provided in pursuant to Article VIII10, Contributor shall, Sellers shall and shall cause its Subsidiaries their Affiliates to: (ai) operate conduct the Assets U.S. Business, in all material respects respects, as currently conducted and only in the Ordinary Course of Business and ordinary course consistent with past practice; (ii) use their commercially reasonable efforts to preserve (A) maintain the present business operations and organization relating to the Assets; (b) with respect to the Purchased Assets, maintain booksrelations with present employees, accounts suppliers, licensees and records operations as an ongoing operation in the usualaccordance with past custom and practice, regular and ordinary manner, on a basis consistent with prior years; (c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (dB) comply in all material respects with all Law applicable Laws affecting or relating to which the Assets are subjectU.S. Business; (eiii) maintain in good standing all material Permits held by Sellers to be transferred to Purchaser in respect of the U.S. Business on a timely basis; and (iv) maintain the Facilities consistent with past practice. (b) Other than as set forth in Section 7.2 of the Seller Disclosure Schedule, from and after the date hereof until the earlier of the Closing or the termination of this Agreement pursuant to Article 10, Sellers shall not, and Sellers shall cause their Affiliates not to: (i) take or omit to take any action that is within the control of Sellers which would result in the representations and warranties contained in this Agreement and the Related Documents being untrue on the Closing Date, other than such action as shall have been previously agreed to in writing by the parties hereto; (ii) sell, transferlease, assignlicense, convey transfer or otherwise dispose of the Membership Interests or mortgage, pledge or otherwise suffer to exist any Encumbrance (except Permitted Encumbrances) on any of the Assets other than the sale Purchased Assets, except for sales of inventory in the Ordinary Course ordinary course of Businessbusiness or an Encumbrance that upon its terms expires before the Closing; (fiii) not create modify, amend or permit terminate any material Contract that is included in the creation of Purchased Assets or waive, release or assign any Lien on the Membership Interests or any of the Assets other than Permitted Liensmaterial rights thereunder; (giv) not take make any action Tax election or settle or compromise any income Tax Liability that would materially could reasonably be anticipated to adversely affect, or impede or impair, affect the ability of U.S. Business after the Parties to consummate the transactions contemplated hereby or therebyClosing Date; (hv) except change its practices, policies or procedures with respect to the timing of the payment of accounts payable or the collection of accounts receivable; (vi) adopt, amend or otherwise modify in any respect any Assumed Employee Plan or enter into, amend or otherwise modify any collective bargaining agreement with any labor union or similar organization that applies to, or covers, U.S. Business Employees, except, in each case, as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the Closing set forth in Article VI not being satisfied; (ivii) not agree grant to take any action prohibited by this Section 5.2Employee whose annual salary is $100,000 or more any increase in cash compensation, except as is required under existing Employment Contracts, any renewal of an Employment Contract in the ordinary course of the business or any Employee Plan; (jviii) not permit Kemmerer enter into any contract relating to increase its indebtednessthe provision of services by Sellers in respect of the U.S. Business or the distribution, sale or incur marketing by third parties of Sellers' services relating to the U.S. Business in an amount in excess of $100,000; (ix) purchase or make any obligation contract for the purchase of an amount of assets or liability, direct or indirectproperties, other than the incurrence of liabilities pursuant to existing agreements purchases in the Ordinary Course ordinary course of Businessbusiness or less than $100,000 in the aggregate; (x) make any new commitments which would require expenditure of more than $100,000 in the aggregate other than in the ordinary course of business; or (kxi) not permit Kemmerer agree or otherwise commit to issue or sell take any membership interests or other equity interestsof the actions set forth above.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 (a) Prior to the consummation of the Contributor Disclosure Schedules Transactions or as otherwise expressly provided by this Agreement the termination or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination expiration of this Agreement as provided pursuant to its terms, unless Purchasers shall otherwise consent in Article VIIIwriting, Contributor which consent shall not be unreasonably withheld, Sellers shall, and shall cause its Subsidiaries toOPP to (and CPI shall, in the case of subsections (viii), (ix) and (xiii) below) do the following: (aA) operate operate, maintain and repair the Assets Oleander Station in accordance with (1) the ordinary course of business and (2) Prudent Utility Practices, and (B) use commercially reasonable efforts to collect all Accounts Receivable of OPP on a timely basis; (ii) cause GEII to complete a Combustion Inspection (as that term is defined in the LTSA) of the fourth Unit of Oleander Station (turbine serial number 297841) in accordance with the provisions of the LTSA; (iii) except as required by their terms, not amend, terminate prior to the expiration date, renew, or renegotiate in any material respect any Existing Contract required to be listed in Schedule 4.10(a) and which would cause OPP to incur an obligation in excess of One Hundred Thousand Dollars ($100,000), or enter into any new contract or agreement that would (if it existed on the date hereof) have been required to be listed in Schedule 4.10(a) and which would cause OPP to incur an obligation in excess of One Hundred Thousand Dollars ($100,000), or fail to comply in all material respects with their obligations under any such Existing Contract; (iv) not sell, lease, transfer or dispose of, or make any contract for the sale, lease, transfer or disposition of, any material assets or properties of OPP or any assets or properties of OPP which would cause OPP to incur an obligation in excess of One Hundred Thousand Dollars ($100,000); (v) not (A) issue any partnership interests in OPP or securities convertible into partnership interests in OPP, or repurchase, redeem, or otherwise acquire any such partnership interests; (B) merge into or with or consolidate with any other Person or acquire all or substantially all of the business or assets of any Person or convert to any other form of business organization; (C) make any material change in their Organizational Documents; (D) purchase any securities of any Person; or (E) incur any additional obligations for borrowed money or guarantee or otherwise become liable for the obligations of any Person; (vi) not take any action or enter into any commitment with respect to or in contemplation of any liquidation, dissolution, recapitalization, reorganization, or other winding up of the Business; (vii) not change their accounting policies or practices (including, without limitation, any change in depreciation or amortization policies), except as required under GAAP; (viii) not enter into any employment, contractor, consulting or employee leasing agreement or cause OPP to incur any liability or obligation under any Employee Benefit Plan, and not make any commitments or representations regarding employment at the Oleander Station, or any terms or conditions of employment that Purchasers might offer to any Person after Closing; (ix) not grant any express Encumbrance on any assets of OPP (or on any of the LTSA Capital Spares, or any of the Parts Inventory listed in Schedule 3.4(a)(i), or any of the items listed in Schedule 4.11, in each case, as owned by CPI that are to be transferred to OPP pursuant to Section 6.15), except to the extent (A) required incident to the operation of the assets of OPP and the Business in the Ordinary Course ordinary course of Business business, or (B) required or evidenced by any Existing Contract, and then only to the extent that the Encumbrances identified in (A) and (B) above would not, individually or in the aggregate, exceed One Hundred Thousand Dollars ($100,000); (x) maintain in full force and effect the Seller Insurance Policies with the coverages, limits and deductibles set forth on Schedule 4.24; (xi) not take any action which would cause any of Sellers' representations and warranties set forth in Article 4 to be incorrect in any material respect as of the Closing; (xii) use their commercially reasonable efforts to preserve litigate against, and to obtain the present business operations lifting of, any injunction, restraining or other order, restraint, prohibition, action, suit, law or penalty related to, or in connection with the consummation of the Transactions, whether brought by any Governmental Authority, third party, or otherwise; and (xiii) Sellers shall cooperate with Purchasers to amend that certain Oleander Power Project, LP Agreement of Limited Partnership dated October 29, 1998 among CP Oleander I, Inc. and organization relating to CP Oleander Limited Partnership such that the Assets;transfer of the Partnership Interests may be effected simultaneously at the Closing without causing a dissolution of the partnership. (b) Notwithstanding anything to the contrary in Section 6.3(a), Sellers shall not be (i) obligated to make or cause OPP to make expenditures other than in the ordinary course of business consistent with past practices or to otherwise suffer any material economic detriment, or (ii) precluded from, and OPP shall not be precluded from, instituting, participating in or completing any program designed to promote compliance or complying with Applicable Laws or other good business practices with respect to the AssetsOleander Station; provided, maintain booksthat notwithstanding anything to the contrary in Section 6.3(a), accounts and records Sellers may take or may cause OPP to take (x) actions which are required by Applicable Laws, (y) reasonable actions in the usualconnection with any emergency or other force majeure event, regular and ordinary manner, on a basis consistent with prior years;or (z) actions otherwise contemplated by this Agreement or disclosed in any Schedule to this Agreement. (c) Until such time, if any, as this Agreement is terminated pursuant to Section 11.1, Sellers will not, and will cause OPP and each of their Affiliates not to, directly or indirectly solicit, initiate, or encourage any inquiries or proposals from, discuss or negotiate with, provide any non-public information to, or consider the merits of any unsolicited inquiries or proposals from, any Person (other than Purchasers) relating to any transaction involving the sale of the Business or substantially all of the assets of OPP, or any of the Partnership Interests of OPP, or any merger, consolidation, business combination, or similar transaction involving OPP. (d) Neither Seller will, before or after the Closing, take any action that could be expected to subject either Seller, or the LP Interest or the GP Interest, to intangibles Tax in the State of Florida. (e) Purchasers and Purchasers' Parent shall use its their commercially reasonable efforts to preserve intact its current material relationships and all material contractual and obtain the lifting of, any injunction, restraining or other obligations with third parties (including material customers and suppliers) having business dealings order, restraint, prohibition, action, suit, law or penalty related to, or in connection with the Partnership or any of its Subsidiaries; (d) comply in all material respects with all Law to which the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose consummation of the Membership Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Business;Transactions. (f) not create or permit The Parties agree that, prior to the creation of any Lien on Closing, the Membership Interests or any names of the Assets Purchasers shall be changed to "SP Oleander I LLC" and "SP Oleander II LLC" or such other than Permitted Liens; (g) not take any action that would materially adversely affect, or impede or impair, names as the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the Closing set forth in Article VI not being satisfied; (i) not agree to take any action prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsPurchasers may select.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Prior to consummation of the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor shall, and shall cause its Subsidiaries to: (a) operate the Assets in all material respects in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (d) comply in all material respects with all Law to which the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose of the Membership Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Business; (f) not create or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (g) not take any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) the termination or expiration of this Agreement pursuant to its terms, and except as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the Closing set forth in Article VI not being satisfied;extent approved by Purchaser or otherwise contemplated by this Agreement, Seller shall: (i) Not: (A) sell, lease, transfer or dispose of, or make any contract for the sale, lease, transfer or disposition of, any assets or properties which would be included in the Assets, other than sales in the ordinary course of business which would not, individually or in the aggregate, have a Material Adverse Effect, (but Seller shall use Commercially Reasonable efforts to tender the Acquired Interests upon Closing under circumstances that will allow continued operation and generation of the Plant under the Facilities Contracts through the duration of the Coal Supply Agreement, which efforts shall include, for the avoidance of doubt, making no affirmative vote as a Facilities Owner to reduce the production from or cease the operation of the Plant prior to the end of the Coal Supply Agreement term); (B) incur, assume, guaranty, or otherwise become liable in respect of any indebtedness for money borrowed, in each case which would result in Purchaser assuming such liability hereunder after the Closing; (C) delay the payment and discharge of any liability which, upon Closing, would be an Assumed Liability, because of the transactions contemplated hereby; or (D) encumber or voluntarily subject to any lien any Asset, except for Permitted Encumbrances; (ii) Approve, or take all steps necessary to approve, all scheduled Capital Improvements in accordance with the Facilities Co-Tenancy Agreement and any requirements therein, unless mutually agreed not agree to approve by Purchaser and Seller; (iii) Not take any action prohibited by this Section 5.2under its control which would cause the Operating Agent to operate the Facilities under the Facilities Operating Agreement in violation of applicable Laws, including Environmental Laws; provided, that the foregoing shall not require Seller to violate the terms or conditions of the Facilities Co-Tenancy Agreement or the Facilities Operating Agreement; (jiv) Upon the request of Purchaser, deliver to Purchaser any written notices from the Operating Agent regarding Environmental Conditions or violations or potential violations of Environmental Law; provided, that the foregoing shall not permit Kemmerer require Seller to increase violate the terms or conditions of the Facilities Co-Tenancy Agreement or the Facilities Operating Agreement or any other confidentiality obligation of Seller; (v) Provide Purchaser and its indebtednessconsultants, representatives and agents with reasonable access and information; provided, that the foregoing shall not require Seller to violate the terms or conditions of the Facilities Co-Tenancy Agreement or the Facilities Operating Agreement or any other confidentiality obligation of Seller; and (vi) With respect to the Assets or the Acquired Interests, not (A) make or change any material Tax election, (B) settle or compromise any claim, notice, audit report or assessment in respect of material Taxes, (C) change any annual Tax accounting period, adopt or change any method of Tax accounting, (D) enter into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any material Tax, or incur (E) consent to any obligation extension or liability, direct waiver of the statute of limitations period applicable to any Tax claim or indirectassessment, other than the incurrence of liabilities pursuant to existing agreements than, in all cases, in the Ordinary Course ordinary course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsbusiness and consistent with past practices.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Prior to consummation of the Contributor Disclosure Schedules transactions contemplated hereby or as otherwise expressly provided by this Agreement the termination or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination expiration of this Agreement as provided in Article VIIIpursuant to its terms, Contributor and except to the extent approved by the other Facilities Owners, Seller shall, in its capacity as a Facilities Owner, exercise its rights and shall cause discharge its Subsidiaries obligations under the Facilities Co-Tenancy Agreement and the Facilities Operating Agreement in a manner which allows the Operating Agent to: (a) operate Operate and maintain the Assets materially in all material respects accordance with the usual and ordinary course, consistent with practices followed prior to the execution of this Agreement; (b) Except as required by their terms, or except to the extent agreed to unanimously by the Facilities Owners, not amend, terminate, renew, or renegotiate any existing Facilities Contract or enter into any new Facilities Contract, except in the Ordinary Course ordinary course of Business business and use consistent with practices of the recent past, or default (or take or omit to take any action that with or without the giving of notice or passage of time, would constitute a default) under any of their commercially reasonable efforts obligations under any such contracts; (c) Not: (i) sell, lease, transfer or dispose of, or make any contract for the sale lease, transfer or disposition of, any assets or properties which would be included in the Assets, other than sales in the ordinary course of business which would not individually, or in the aggregate, have a Material Adverse Effect upon the operations or value of the Facilities or the Facilities Switchyard; (ii) incur, assume, guaranty, or otherwise become liable in respect of any indebtedness for money borrowed which would result in Purchaser assuming such liability hereunder after the Closing; (iii) delay the payment and discharge of any liability which, upon Closing, would be an Assumed Liability, because of the transactions contemplated hereby; or (iv) encumber or voluntarily subject to preserve any lien any Asset, except for Permitted Encumbrances; (d) Maintain in force and effect the present business operations material property and organization relating liability insurance policies related to the Facilities or the Facilities Switchyard and the Assets; (be) Not take any action which would cause any of Seller's representations and warranties set forth in ARTICLE 4 to be materially false as of the Closing; and (f) Not take any action or exercise any voting right with respect to the AssetsFacilities or the Facilities Switchyard, maintain booksincluding voting rights under the Facilities Contracts, accounts and records other than in good faith (subject to the usualforegoing, regular and ordinary manner, on with respect to any matter which requires a basis consistent with prior years; (c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (d) comply in all material respects with all Law to which the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose vote of the Membership Interests or any of Facilities Owners, Seller shall, if reasonably practicable, consult with Purchaser prior to such vote and take the Assets other than the sale of inventory Purchaser's views into account in the Ordinary Course of Business; (f) not create or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens; (g) not take any action good faith); PROVIDED, that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result nothing in any of the conditions to the Closing set forth in Article VI not being satisfied; this Section shall (i) not agree preclude Seller from paying, prepaying or otherwise satisfying any liability which, if outstanding as of the Closing Date, would be an Assumed Liability or an Excluded Liability, or (ii) preclude Seller from incurring any liabilities or obligations to take any action prohibited third party in connection with obtaining such Party's consent to any transaction contemplated by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, Agreement or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsAncillary Agreements.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 Subsequent to the execution of the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement by Buyer, and pending closing of title and/or Buyer’s earlier cancellation, or with default, Seller: (1) shall not execute or modify any Leases, or extensions or renewals of Leases other than month-to-month Leases in the ordinary course of business, without the prior written consent of Buyer, except as required by the Partnershipterms of the Leases currently in effect; (2) shall not execute or modify any Contracts, from June 1Permits or Warranties, 2015 until or extensions or renewals of Contracts, Permits or Warranties, without the Closing prior written consent of Buyer, except as required by the terms of the Contracts, Permits or termination of this Agreement as provided Warranties currently in Article VIII, Contributor shall, and effect; (3) shall cause its Subsidiaries to: (a) operate the Assets in all make no material respects changes in the Ordinary Course physical condition of Business and use their commercially reasonable efforts to preserve the present business operations and organization Property without the prior written consent of Buyer; (4) shall not modify the Intangibles in any material respect; (5) shall maintain any insurance coverage relating to the Assets; Property that is currently maintained by Seller, in the amounts and coverages currently in effect; (b6) shall not dispose of any interest in the Property and shall not mortgage, pledge, or subject to lien or other encumbrances any interest in the Property; (7) shall not seek or consent to any zoning or other change affecting the use of the Real Estate or seek or consent to any re-platting of the Real Estate or any amendment of the existing plat; (8) shall pay, prior to delinquency, all property taxes, insurance premiums, utility charges and other obligations which become due and payable with respect to the Assets, maintain books, accounts and records Property or the Business; (9) shall promptly advise Buyer of the commencement of any litigation by or against Seller pertaining to the Property; (10) shall manage the Property in substantially the same manner in which it was managed prior to the Seller’s execution of this Agreement; (11) shall not remove any material Tangible Personal Property used in the usual, regular and ordinary manner, on a basis consistent with prior years; (c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries; (d) comply in all material respects with all Law to which the Assets are subject; (e) not sell, transfer, assign, convey or otherwise dispose operation of the Membership Interests Property or any Business unless same is replaced by similar Tangible Personal Property of the Assets other than the sale of inventory in the Ordinary Course of Business; same or better quality and condition; and (f12) not create or permit the creation provide Buyer written notice of any Lien on change in fact that make the Membership Interests or any of the Assets other than Permitted Liens; (grepresentations in Section 12(d) not take any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the Closing set forth in Article VI not being satisfied; (i) not agree to take any action prohibited by this Section 5.2; (j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsuntrue.

Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 (a) From and after the date hereof until the earlier of the Contributor Disclosure Schedules Closing or as otherwise the termination of this Agreement pursuant to Article XII, each Seller shall and shall cause its Seller Subsidiaries, if any, to, except for those actions expressly provided contemplated or required to be taken by this Agreement or with as consented to by Purchaser in writing: (i) conduct or cause to be conducted the prior written consent Business, including the operation of the PartnershipFacilities, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor shall, currently conducted and shall cause its Subsidiaries to: (a) operate the Assets in all material respects only in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets; (b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis course consistent with prior years; past practice; (cii) use its commercially reasonable best efforts to (A) keep available for Purchaser the services of the present officers, employees, consultants, agents and representatives of the Sellers and the Seller Subsidiaries, and (B) preserve intact the business organization, Assets, ongoing business and goodwill and keep its current material relationships with its customers, suppliers, licensors, licensees, advertisers, contractors and all material contractual and other obligations with third parties (including material customers and suppliers) others having business dealings relations with the Partnership or any of its Subsidiaries; Sellers in accordance with past practice; (diii) comply in all material respects with all Law applicable Laws affecting or relating to which the Assets are subject;Business; and (iv) maintain in good standing all Operating Licenses and other material required Permits held by such Seller in respect of the Business on a timely basis. (eb) From and after the date hereof until the earlier of the Closing or the termination of this Agreement pursuant to Article XII, none of the Sellers shall, and the Sellers shall not cause or permit their respective Seller Subsidiaries to, except as expressly contemplated or required by this Agreement or as consented to by Purchaser in writing: (i) take or omit to take any action which would result in the representations and warranties contained in this Agreement or the Related Documents being untrue in any material respect (or in the case of representations and warranties which are qualified as to materiality, untrue in any respect) on the Closing Date; (ii) by action or inaction, abandon, terminate, cancel, forfeit, waive or release any of any Seller’s material rights, in whole or in part, with respect to the Purchased Assets, or sell, transferlease, assignlicense, convey transfer or otherwise dispose of the Membership Interests or mortgage, pledge or otherwise suffer to exist any Encumbrance on any of the Purchased Assets other than the sale of inventory Permitted Encumbrances identified on Schedule 5.10(b) hereto; (iii) modify, amend or terminate any Contract that is included in the Ordinary Course Purchased Assets or waive, release or assign any material rights or claims thereunder or permit any of Business; the foregoing to occur; (fiv) not create effect any merger, business combination or similar transaction or take any other action, corporate or otherwise, which might affect any Seller’s ability to perform in accordance with this Agreement; (v) cancel or permit the creation cancellation or lapse of any Lien insurance coverage on the Membership Interests Purchased Assets or the Business; (vi) take any action or enter into any agreement with any Governmental Entity, whether or not related to any Permits; (vii) settle any dispute or threatened dispute with any Governmental Entity or party to any Assigned Contract; (viii) except in the ordinary course of business, grant any increase in salary or benefits of any officer, director, manager, or employee or pay any special bonus to any Person, enter into or modify any employment offer, employment loss, employment status or severance agreement or grant any severance or termination pay (other than pursuant to severance arrangements or policies as in effect on the date of this Agreement), establish, adopt, enter into, amend or terminate any Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Plan if it were in existence as of the date of this Agreement except as required by applicable Law, but only to the extent that any such action would affect Seller Employees, or make any loan or advance to, or enter into any Contract with, any director, manager, officer, employee or consultant of any Seller or Seller Subsidiary; (ix); make any material Tax election or settle or compromise any material income Tax Liability; (x) change its practices, policies or procedures with respect to the timing of the payment of accounts payable or the collection of accounts receivable; (xi) enter into any tolling agreement to extend the statute of limitations with respect to any Liabilities of the Sellers; (xii) modify, amend or terminate any Plan or Other Arrangement; (xiii) take any other action which might affect an Assumed Liability; (xiv) make any alterations or improvements to any of the Assets other than Permitted Liens;Facilities or make any capital expenditure with respect to any of the Facilities in excess of $100,000 not included in the Seller 2005 Capital Expenditure Budget; (xv) enter into any Resident Agreements outside the ordinary course of business; or (xvi) agree or otherwise commit to take any of the actions set forth above. (gc) The Trust and the Greenbriar Stockholders shall not take any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby; (h) except as required by Law, not take any action that would reasonably be expected to result in cause any of the conditions to the Closing set forth in Article VI not being satisfied; (i) not agree Sellers or any of their respective Seller Subsidiaries to take any action prohibited by this inconsistent with the purposes of Sections 7.2(a) and (b) above and Section 5.2;7.2(d) below. (jd) Notwithstanding anything in Section 5.10(a) of the Agreement, to the extent that any Seller Subsidiary that is not permit Kemmerer a party to increase its indebtedness, this Agreement has any rights with respect to any Assets that are used in the operation of the Facilities or incur any obligation or liability, direct or indirect, the conduct of the Business (other than intercompany accounts, whether or not represented by promissory notes), the incurrence of liabilities Sellers shall cause such Assets (and any related rights) to be transferred or conveyed as Purchased Assets pursuant to existing agreements in this Agreement or the Ordinary Course of Business; or (k) not permit Kemmerer to issue or sell any membership interests or other equity interestsAsset Purchase Agreement.