Common use of Actions Prior to Closing Clause in Contracts

Actions Prior to Closing. During the period prior to the Closing Date, except as contemplated by this Agreement or except as approved in writing by Buyer, Seller shall (a) keep and maintain the Manufacturing Facility, the Leased Manufacturing Equipment, and the Owned Personal Property in good operating condition and repair subject to normal wear and tear; (b) maintain and comply in all material respects with (except for expiration due to lapse of time) all Assigned Contracts in effect without change, except those Assigned Contracts which expire or terminate by their terms or as otherwise expressly provided herein; (c) comply in all material respects with the provisions of all Laws applicable to the Manufacturing Facility and the Purchased Assets and its conduct of the Business; (d) not alter in any material respect the rate or basis of compensation of any of the Facility Employees other than in the ordinary course of business; (e) use commercially reasonable efforts to resolve the matters identified in Schedule 5.10; (f) not sign any sublease or license with respect to the Leased Real Property; (g) not amend the Lease Agreement or CCIDA Lease Agreements, or amend in any material respect any other Assigned Contract; (h) maintain insurance for the Leased Real Property (to the extent maintained by Seller as of the date of this Agreement), Owned Personal Property and Leased Manufacturing Equipment; (i) refrain from removing any items of Owned Personal Property or Leased Manufacturing Equipment (other than any obsolete items), unless such items are replaced with items of equal or greater value; (j) promptly inform Buyer of any written notices of default or violations that it receives related to the Leased Real Property, Manufacturing Facility or any Assigned Contracts; (k) not enter into any agreements with Design-Builder or the “Architect” identified on Schedule 7.2 (“Architect”) without Buyer’s consent, which consent shall not be unreasonably withheld, conditioned, or delayed; and (l) provide Buyer with the opportunity to attend all meetings and conference calls that Seller has with Design-Builder, Architect, FSMC, ESD, CCIDA or any Governmental Authority, to the extent such meetings or conference calls relate to the Purchased Assets, Assigned Contracts, or the Manufacturing Facility.

Actions Prior to Closing. During Except as set forth in Schedule 5.1, Seller shall operate the period Acquired Assets and the Business prior to the Closing Date, except as contemplated by this Agreement or except as approved only in writing by Buyer, Seller shall the Ordinary Course of Business. (a) keep Without limiting the generality of the foregoing, between the date hereof and maintain the Manufacturing FacilityEffective Time, Seller shall: (i) pay all accounts payable of the Business when and as due in the Ordinary Course of Business; (ii) use its commercially reasonable efforts in the Ordinary Course of Business and in all material respects to preserve intact the Acquired Assets and the goodwill of the Business, the Leased Manufacturing Equipmentcontinued services of the employees of Business, and the Owned Personal Property in good operating condition current relationships of the Business with its customers, suppliers and repair subject to normal wear others with significant and tear; recurring business dealings with the Business; (biii) maintain all Contracts that will be “Assigned Contracts” in the Ordinary Course of Business; (iv) maintain its existence and good standing in its jurisdiction of organization and in each jurisdiction in which the character of the properties owned, operated or leased, or the nature of the activities of Seller, makes such qualification necessary, except where the failure to do so would not result in a Material Adverse Effect; (v) maintain the books and records of the Business in the Ordinary Course of Business and consistent with past practices; and (vi) use its commercially reasonable efforts to comply in all material respects with all Legal Requirements applicable to Seller and the Business. (b) Between the date hereof and the Effective Time, Seller shall not, without the prior written consent of Buyer, undertake any of the following actions: (i) enter into any new Contract binding any material portion of the Acquired Assets subsequent to the Closing or, other than in the Ordinary Course of Business, materially extend, release, relinquish, amend or modify any Assigned Contract; (ii) other than in the Ordinary Course of Business, enter into any new customer Contract for the provision of services or enter into any new Contract that would constitute a Material Contract; (iii) permit or allow any of the Acquired Assets to be subjected to any Encumbrances, except for expiration due Permitted Encumbrances; (iv) other than in the Ordinary Course of Business, sell, transfer, or otherwise dispose of all or any portion of the Acquired Assets, or mortgage, pledge or otherwise encumber or license the use of any Acquired Asset; (v) subject to lapse the right of timeParent or its Affiliates to make modifications to Employee Benefit Plans (a) all Assigned Contracts in effect without changemake any material change to any existing agreements with any Employees, except those Assigned Contracts which expire or terminate by their terms or as otherwise expressly provided herein; for changes made in the Ordinary Course of Business (cb) comply in all material respects with the provisions of all Laws applicable to the Manufacturing Facility and the Purchased Assets and its conduct of the Business; (d) not alter increase in any material respect manner the rate or basis of compensation of any of the Facility Employees Employees, or make any accrual for or commitment or agreement to make or pay the same, other than normal scheduled increases using standards consistent with past practice in the ordinary course Ordinary Course of business; (e) use commercially reasonable efforts to resolve the matters identified in Schedule 5.10; (f) not sign any sublease or license with respect to the Leased Real Property; (g) not amend the Lease Agreement or CCIDA Lease AgreementsBusiness, or amend (c) pay or agree to pay any bonus, pension, retirement allowance, severance or other employee benefit not required or permitted by any Employee Benefit Plan or Contract existing on the date hereof or in the Ordinary Course of Business; (vi) directly or indirectly (or permit any Parent Entity directly or indirectly to) offer or solicit any Employee to seek or accept a position with any Parent Entity, or transfer any Employee to or hire any Employee for any position with any Parent Entity; (vii) make any material respect change to its accounting procedures or practices or its financial structure; (viii) take any other Assigned Contract; (h) maintain insurance for action to accelerate the Leased Real Property (generation or collection of revenues beyond the level that would result from operations in the Ordinary Course of Business or take any action the taking of which, or omit to take any action the extent maintained by Seller omission of which, would cause any of the representations and warranties herein to fail to be true and correct in all material respects as though made at and as of the date of this Agreementsuch action or omission; (ix) enter into any collective bargaining agreement covering any of the Employees; (x) other than in the Ordinary Course of Business, settle any material Action related to an Assumed Obligation or knowingly waive any right of material value relating to the Acquired Assets; (xi) make any write down of Acquired Assets or write off as uncollectible any Accounts Receivable, except in the Ordinary Course of Business; (xii) enter into any lease or sublease for real property (as lessor or lessee); (xiii) assume, Owned Personal Property and Leased Manufacturing Equipment; (i) refrain from removing any items of Owned Personal Property or Leased Manufacturing Equipment guarantee, endorse (other than any obsolete itemsendorsements for deposit or collection in the Ordinary Course of Business), unless such items are replaced with items of equal or greater value; (j) promptly inform Buyer otherwise become responsible for obligations of any written notices other Person, other than in the Ordinary Course of default Business; or (xiv) agree or violations that it receives related commit to do any of the Leased Real Property, Manufacturing Facility or any Assigned Contracts; (k) not enter into any agreements with Design-Builder or the “Architect” identified on Schedule 7.2 (“Architect”) without Buyer’s consent, which consent shall not be unreasonably withheld, conditioned, or delayed; and (l) provide Buyer with the opportunity to attend all meetings and conference calls that Seller has with Design-Builder, Architect, FSMC, ESD, CCIDA or any Governmental Authority, to the extent such meetings or conference calls relate to the Purchased Assets, Assigned Contracts, or the Manufacturing Facilityforegoing.

Actions Prior to Closing. During (a) Operations Pending Closing. Between the period prior to date of this -------------------------- Agreement and the Closing Date, except as contemplated by this Agreement or except as approved in writing by Buyer, the Seller shall (a) keep and maintain continue to operate the Manufacturing Facility, Business in the Leased Manufacturing Equipment, and Ordinary Course. Without the Owned Personal Property in good operating condition and repair subject to normal wear and tear; (b) maintain and comply in all material respects with (except for expiration due to lapse of time) all Assigned Contracts in effect without change, except those Assigned Contracts which expire or terminate by their terms or as otherwise expressly provided herein; (c) comply in all material respects with the provisions of all Laws applicable to the Manufacturing Facility and the Purchased Assets and its conduct prior written consent of the Business; (d) not alter in any material respect the rate or basis of compensation of any of the Facility Employees other than in the ordinary course of business; (e) use commercially reasonable efforts to resolve the matters identified in Schedule 5.10; (f) not sign any sublease or license with respect to the Leased Real Property; (g) not amend the Lease Agreement or CCIDA Lease Agreements, or amend in any material respect any other Assigned Contract; (h) maintain insurance for the Leased Real Property (to the extent maintained by Seller as of the date of this Agreement), Owned Personal Property and Leased Manufacturing Equipment; (i) refrain from removing any items of Owned Personal Property or Leased Manufacturing Equipment (other than any obsolete items), unless such items are replaced with items of equal or greater value; (j) promptly inform Buyer of any written notices of default or violations that it receives related to the Leased Real Property, Manufacturing Facility or any Assigned Contracts; (k) not enter into any agreements with Design-Builder or the “Architect” identified on Schedule 7.2 (“Architect”) without Buyer’s consent, which consent shall not be unreasonably withheldwithheld or delayed, conditionedthe Seller shall not do any of the following with respect to the Business during such period: (i) engage in any commercial practice that is not in the Ordinary Course including sales of product to any one customer in excess of such customer's needs for one season, adding or terminating a distributor, or delayedmodifying any material contract; (ii) sell, lease to others, license to others or otherwise dispose of any Assets, except for sales of produce inventory and use of nursery transplants in the Ordinary Course and replacement or retirement of machinery and equipment in the Ordinary Course; (iii) except as may be imposed by a Requirement of Law (which shall not qualify the Seller's representations or the Buyer's closing conditions contained herein), create or suffer to be created any Encumbrance or other exceptions to title upon the Assets, except for draws under the Operating Line in the Ordinary Course, and except that the financing for property which is presently secured may be refinanced; provided, however, that such refinancing shall be on no less favorable terms (other than changes in interest rates dictated by market conditions), shall not increase the amount of the debt and shall not increase the collateral therefor; (iv) enter into any agreement or commitment that materially restricts the Business from being carried on as it is currently being carried on; (v) incur any additional indebtedness for money borrowed, except (a) amounts secured by inventory and/or receivables under the Operating Line, (b) indebtedness incurred to acquire property, plant or equipment and secured by the acquired asset otherwise permitted hereby and (lc) provide Buyer with the opportunity indebtedness to attend all meetings and conference calls that Seller has with Design-Builder, Architect, FSMC, ESD, CCIDA or any Governmental Authority, to the extent such meetings or conference calls relate to the Purchased Assets, Assigned Contracts, or the Manufacturing FacilityAffiliates.

Actions Prior to Closing. During Except as otherwise specifically required or permitted by another provision of this Agreement or approved by Purchaser in writing, from the period prior to date hereof through the Closing Date, except as contemplated by this Agreement or except as approved in writing by Buyer, Seller shall conduct the Business in the ordinary course and consistent with past practice and use its best efforts to preserve generally the goodwill of customers, suppliers and others having relationships with the Division and shall not: (a) keep and maintain the Manufacturing Facility, the Leased Manufacturing Equipment, and the Owned Personal Property in good operating condition and repair subject to normal wear and tear; (b) maintain and comply in all material respects with (except for expiration due to lapse of time) all Assigned Contracts in effect without change, except those Assigned Contracts which expire or terminate by their terms or as otherwise expressly provided herein; (c) comply in all material respects with the provisions of all Laws applicable to the Manufacturing Facility and the Purchased Assets and its conduct of the Business; (d) not alter in any material respect the rate or basis of compensation of Transfer any of the Facility Employees other than Assets, except Transfers of Inventory in the ordinary course of business; the Business and consistent with past practice; (b) grant, create or permit to exist any Encumbrance on any of the Assets (other than Encumbrances specified on SCHEDULE 4.5(b), SCHEDULE 4.6(b) or SCHEDULE 4.8(c) hereof); (c) fail to maintain in all material respects Inventory in the condition set forth in Section 4.5(b) hereof and the Equipment thereof as of the date specified in the last sentence of Section 4.12; (d) terminate, modify, amend or waive any rights under any Contract, or enter into any new or additional Contracts, except in the ordinary course of the Business and consistent with past practice; (e) use commercially reasonable efforts surrender, modify, amend, waive or forfeit any of Seller's rights in respect of any Intellectual Property or fail to resolve maintain such rights by failing to file any necessary statements of use, requests for extensions of time, renewal applications, responses to office actions or affidavits under Sections 8 and 15 of the matters identified in Schedule 5.10; ▇▇▇▇▇▇ Act, to prosecute any INTER PARTES proceedings or to pay any necessary maintenance or other fee or otherwise; (f) not sign any sublease modify its accounting policies, practices or license with respect to procedures or the Leased Real Property; manner in which the Books and Records are maintained; (g) not amend the Lease Agreement or CCIDA Lease Agreements, or amend violate in any material respect any other Assigned Contract; Law applicable to the conduct of the Business or the use of the Assets; (h) maintain insurance for the Leased Real Property (take or permit to the extent maintained by Seller as of the date of this Agreement), Owned Personal Property and Leased Manufacturing Equipmentbe taken any action that could reasonably be expected to result in a Material Adverse Change; or (i) refrain from removing agree or consent to do any items of Owned Personal Property or Leased Manufacturing Equipment (other than any obsolete items), unless such items are replaced with items of equal or greater value; (j) promptly inform Buyer of any written notices of default or violations that it receives related to the Leased Real Property, Manufacturing Facility or any Assigned Contracts; (k) not enter into any agreements with Design-Builder or the “Architect” identified on Schedule 7.2 (“Architect”) without Buyer’s consent, which consent shall not be unreasonably withheld, conditioned, or delayed; and (l) provide Buyer with the opportunity to attend all meetings and conference calls that Seller has with Design-Builder, Architect, FSMC, ESD, CCIDA or any Governmental Authority, to the extent such meetings or conference calls relate to the Purchased Assets, Assigned Contracts, or the Manufacturing Facilityforegoing.

Actions Prior to Closing. During From the period prior date hereof to the Closing Dateor the earlier termination of this Agreement, except as contemplated by this Agreement or except as approved in writing by Buyerdescribed on Schedule 5.1, Seller shall (a) keep covenants and maintain agrees that, unless the Manufacturing Facilityprior written consent of Buyer is obtained, the Leased Manufacturing Equipmentit and its Affiliates will not take any action or agree to take any action, and the Owned Personal Property will not permit or cause either Company to take any action or agree to take any action which would result in good operating condition and repair subject to normal wear and tear; (b) maintain and comply in all material respects with (except for expiration due to lapse of time) all Assigned Contracts in effect without change, except those Assigned Contracts which expire or terminate by their terms or as otherwise expressly provided herein; (c) comply in all material respects with the provisions of all Laws applicable to the Manufacturing Facility and the Purchased Assets and its conduct of the Business; (d) not alter in any material respect the rate or basis of compensation a violation of any of the Facility Employees other than following proscriptions: (a) The Business of each Company will be carried on in the usual and ordinary course of business and each Company will use all reasonable efforts to preserve its present Business, business organization, facilities, operations, and Property intact, keep available the services of its present officers and employees and preserve its present relationships with Persons having business dealings with it, and shall not make or institute any methods of manufacture, purchase, sale, lease, management, accounting or operation which are not reasonable and consistent with the usual and ordinary course of business of such Company; (b) Oasis shall not declare or pay cash Dividends on the Common Stock and the Preference Stock unless such Dividends are consistent with past practices and are in the ordinary course of businessoperations of Oasis, and Schedule 5.1(b) sets forth cash Dividends expected to be made by Oasis prior to Closing; the cash Dividends declared by Oasis shall not exceed the expected Dividends set forth on Schedule 5.1(b); (ec) use commercially reasonable efforts to resolve Seller will not vote its shares of capital stock of Oasis in favor of any transaction involving the matters identified in Schedule 5.10; (f) not sign any sublease sale or license with respect to the Leased Real Property; (g) not amend the Lease Agreement other disposition of all or CCIDA Lease Agreements, or amend in any material respect any other Assigned Contract; (h) maintain insurance for the Leased Real Property (to the extent maintained by Seller as substantially all of the date assets of this Agreement), Owned Personal Property and Leased Manufacturing Equipment; (i) refrain from removing any items of Owned Personal Property or Leased Manufacturing Equipment (other than any obsolete items), unless such items are replaced with items of equal or greater value; (j) promptly inform Buyer of any written notices of default or violations that it receives related to the Leased Real Property, Manufacturing Facility either Company or any Assigned Contracts; (k) merger, consolidation, business combination dissolution, liquidation or similar transaction involving either Company, and Seller will not enter into agree to any agreements with Design-Builder amendment or termination of or waive any rights under any of the “Architect” identified on Schedule 7.2 (“Architect”) without Buyer’s consent, which consent shall not be unreasonably withheld, conditioned, or delayed; and (l) provide Buyer with the opportunity to attend all meetings and conference calls that Seller has with Design-Builder, Architect, FSMC, ESD, CCIDA or any Governmental Authority, to the extent such meetings or conference calls relate to the Purchased Assets, Assigned Contracts, or the Manufacturing FacilityTransportation Rights.

Actions Prior to Closing. During The Company shall conduct the ------------------------ Business pending the Closing only in the ordinary and usual course of business consistent with past practice. Without limiting the generality of the foregoing, the Company shall maintain and keep its properties, offices in good condition and repair, keep in full force and effect its insurance coverage, continue advertising its business in accordance with past practice, maintain in effect all of its leases, use reasonable best efforts to maintain in accordance with good business practice its present employees and its relationships with its suppliers and customers so that they will be preserved for the Buyer after the Closing, maintain its inventory at levels consistent with its past practices, and continue to pay its accounts payable and collect its accounts receivables in a manner consistent with its past practices. Furthermore, the Company shall conduct the Business in a manner such that on the Closing Date the Company will have no obligations or liabilities except (a) those set forth on the Statements and (b) those incurred in the ordinary course of business consistent with past practice after the date of Statements and prior to the Closing Date and reflected accurately in its books and records. Except as expressly contemplated by this Agreement or as consented to in writing by the Buyer, during the period prior from the date of this Agreement to the Closing Date, except Sellers shall not allow the Company to (i) issue, sell or pledge, or authorize or propose the issuance, sale or pledge of (A) additional shares of capital stock of any class, or securities convertible into any such shares, or any rights, warrants or options to acquire any such shares or other convertible securities, or (B) any other securities in respect of, in lieu of or in substitution for shares outstanding on the date thereof; (ii) redeem, purchase or otherwise acquire, any of its outstanding securities; (iii) declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on or in respect of any share of capital stock of the Company; (iv) (A) make any acquisition of assets or securities, any disposition of assets or securities or any change in its capitalization, or (B) enter into any contract or release or relinquish any contract or other rights; (v) incur any long-term debt for borrowed money or any short-term debt for borrowed money other than in the ordinary course of business consistent with past practice; (vi) propose or adopt any amendments to the Certificate and Articles of Incorporation or By-Laws of the Company; (vii) other than as contemplated or permitted by this Agreement Agreement, enter into any new employment agreements with any officers, directors or except as approved employees or grant any increases in writing by Buyerthe compensation or benefits to, Seller shall (a) keep or agree to pay any bonus, severance or termination payment or other special compensation to, officers, directors and maintain employees other than increases in the Manufacturing Facility, the Leased Manufacturing Equipment, and the Owned Personal Property in good operating condition and repair subject to normal wear and tearordinary course of business consistent with past practice; (bviii) maintain and comply in all material respects with (except for expiration due make any loan or advance to lapse of time) all Assigned Contracts in effect without change, except those Assigned Contracts which expire or terminate by their terms or as otherwise expressly provided herein; (c) comply in all material respects with the provisions of all Laws applicable to the Manufacturing Facility and the Purchased Assets and its conduct of the Business; (d) not alter in any material respect the rate or basis of compensation of any of the Facility Employees its officers, directors, consultants, agents or employees or to any member of their families or any other loan or advance otherwise than in the ordinary course of business; (eix) use commercially reasonable efforts to resolve the matters identified in Schedule 5.10make or incur any charitable contributions or any nonbusiness expense; (fx) not sign allow the mix, quality and quantity of inventory to deviate from the levels required to service the Business, consistent with past practices; or (xi) agree in writing or orally to take any sublease of the foregoing actions or license with respect to the Leased Real Property; (g) not amend the Lease Agreement or CCIDA Lease Agreements, or amend in any material respect any other Assigned Contract; (h) maintain insurance for action which would have made any representation or warranty in this Agreement untrue or result in the Leased Real Property (to the extent maintained by Seller as of the date of this Agreement), Owned Personal Property and Leased Manufacturing Equipment; (i) refrain from removing any items of Owned Personal Property or Leased Manufacturing Equipment (other than any obsolete items), unless such items are replaced with items of equal or greater value; (j) promptly inform Buyer breach of any written notices of default or violations that it receives related to the Leased Real Property, Manufacturing Facility or any Assigned Contracts; (k) not enter into any agreements with Design-Builder or the “Architect” identified on Schedule 7.2 (“Architect”) without Buyer’s consent, which consent shall not be unreasonably withheld, conditioned, or delayed; and (l) provide Buyer with the opportunity to attend all meetings and conference calls that Seller has with Design-Builder, Architect, FSMC, ESD, CCIDA or any Governmental Authority, to the extent such meetings or conference calls relate to the Purchased Assets, Assigned Contracts, or the Manufacturing Facilitycovenant hereunder.

Actions Prior to Closing. During Safe as provided below, it is understood and agreed that the period Company shall continue to operate its business as a going concern, in the ordinary and usual course of business and consistent with prior to practice and substantially in compliance with the investment policies of the budget for the business year 2003 at all times from the date of this Agreement through the Closing Date. Subject to any constraints under applicable law, the Sellers shall procure that the Purchaser and its legal and financial advisers and auditors are given reasonable direct access to the management, legal and financial advisers and auditors of the Company to the extent that is necessary or expedient for the Purchaser or its advisors and auditors for conducting the actions contemplated. The Sellers shall procure that the Company, without the prior consent of the Purchaser, does not undertake any of the following actions from the signing of this Agreement until the Closing Date (i) any action which would materially interfere with the consummation of the transactions contemplated under this Agreement taken as a whole; (ii) execute any contracts or enter into any negotiations with any third party that would materially inhibit or impair the consummation of the transactions contemplated under this Agreement taken as a whole; (iii) sell, encumber or transfer any assets outside of the ordinary and normal course of business except as contemplated by in this Agreement Agreement; (iv) deviate from its ordinary course of business and, in particular, make any extraordinary expenditure or except commitment to spend in excess of CHF 5’000.—, acquire or dispose of any assets which would or could have a material effect on the Company, enter into any real estate leases and will not materially change the number of employees or their conditions of employment; (v) change the policies as approved currently existing in writing by Buyereffect until Closing, Seller shall (a) keep and maintain the Manufacturing Facility, the Leased Manufacturing Equipment, and the Owned Personal Property in good operating condition and repair subject to normal wear and tear; (b) maintain and comply in all material respects with (except for expiration due to lapse of time) all Assigned Contracts in effect without changeminor changes, except those Assigned Contracts which expire or terminate by their terms or as otherwise expressly provided herein; (c) comply in all material respects with the provisions of all Laws applicable to the Manufacturing Facility and the Purchased Assets and its conduct of the Business; (d) not alter in any material respect the rate or basis of compensation of any of the Facility Employees other than may occur in the ordinary course of business; (vi) issue shares, non-voting shares, “Partizipationsscheine” or “Genussscheine” or convertible securities or similar rights in the Company; or (evii) use commercially reasonable efforts to resolve the matters identified in Schedule 5.10; (f) not sign declare, set aside or pay any sublease dividend or license with respect other distributions or grants of any benefit to the Leased Real Property; (g) Sellers or related persons. The Sellers will procure that the Company will have – except for its current liabilities, especially but not amend the Lease Agreement or CCIDA Lease Agreements, or amend in any material respect any other Assigned Contract; (h) maintain insurance for the Leased Real Property (limited to the extent maintained by loans of USD 125’000.— each to the O.O.O. Reksoft Ltd. and the Seller 3 – no liabilities as of the date of this Agreement), Owned Personal Property and Leased Manufacturing Equipment; (i) refrain from removing any items of Owned Personal Property or Leased Manufacturing Equipment (other than any obsolete items), unless such items are replaced with items of equal or greater value; (j) promptly inform Buyer of any written notices of default or violations that it receives related to the Leased Real Property, Manufacturing Facility or any Assigned Contracts; (k) not enter into any agreements with Design-Builder or the “Architect” identified on Schedule 7.2 (“Architect”) without Buyer’s consent, which consent shall not be unreasonably withheld, conditioned, or delayed; and (l) provide Buyer with the opportunity to attend all meetings and conference calls that Seller has with Design-Builder, Architect, FSMC, ESD, CCIDA or any Governmental Authority, to the extent such meetings or conference calls relate to the Purchased Assets, Assigned Contracts, or the Manufacturing FacilityClosing Date.

Actions Prior to Closing. During the period prior to The following actions shall be effective as of the Closing Date, except as contemplated by this Agreement or except as approved in writing by Buyer, Seller shall : (a) keep The holders of shares of the 12% Convertible Pay-In-Kind Preferred Stock, $.01 par value per share (the "12% Preferred Stock"), shall have converted such shares into shares of common stock, $.01 par value per share, of Company (the "Company Common Stock") and maintain the Manufacturing Facility, the Leased Manufacturing Equipment, and the Owned Personal Property in good operating condition and repair subject to normal wear and tearall rights of such holders with respect thereto shall cease upon such conversion; and (b) maintain The holder of shares of the 14% Pay-In-Kind Perpetual Preferred Stock $.01 par value per share (the "14% Preferred Stock"), shall have put such shares to -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER Company in accordance with the terms of the 14% Preferred Stock and comply in Buyer shall pay to such holders of 14% Preferred Stock, at the Closing, the put price therefor (the "Preferred Stock Put Price"), and upon payment thereof, all material respects rights of such holders with (except for expiration due to lapse of time) all Assigned Contracts in effect without change, except those Assigned Contracts which expire or terminate by their terms or as otherwise expressly provided hereinrespect thereto shall cease; and (c) comply in all material respects with the provisions The holders of shares of all Laws applicable warrants to purchase shares of Company Common Stock (each of whom is identified on Schedule 1.5(c) attached hereto) shall have exercised such warrants and shall have paid to Company any warrant exercise price related thereto (the Manufacturing Facility and the Purchased Assets and its conduct of the Business"Warrants"); and (d) not alter in any material respect the rate or basis The holders of compensation all options to purchase shares of any Company Common Stock (each of whom is identified on Section 3.2(a) of the Facility Employees other than Company Disclosure Schedule) (the "Options") shall have entered into either (i) option termination agreements in the ordinary course form of businessExhibit A-1; or (eii) use commercially reasonable efforts to resolve for those persons identified on Schedule 1.5(d) hereto, (x) an option termination agreement in the matters identified in Schedule 5.10; form of Exhibit A-2 (ftogether with the form of agreement at Exhibit A-1, the "Option Termination Agreements") not sign any sublease or license with respect to (y) a retention agreement between such holder and Buyer (the Leased Real Property; "Retention Agreements") and a Letter Agreement between such holder and Company (gthe "Letter Agreements") not amend the Lease Agreement or CCIDA Lease Agreements, or amend in any material respect any other Assigned Contract; (h) maintain insurance for the Leased Real Property (to the extent maintained by Seller each entered into as of the date hereof. The holders of this Agreement)the Options as of the Closing shall receive from the Company, Owned Personal Property with funds provided by Buyer, in the aggregate, $27,000,000 in connection with the execution of the Option Termination Agreements, the Retention Agreements and Leased Manufacturing Equipment; the Letter Agreements, to be allocated on a pro rata basis in accordance with the number of shares of Company Common Stock to be issued upon exercise of each such holder's Options. Payment shall be made (i) refrain from removing any items in full at Closing to those holders of Owned Personal Property Options that execute an Option Termination Agreement in the form of Exhibit A-1, or Leased Manufacturing Equipment (other than any obsolete items), unless such items are replaced with items of equal or greater value; (jii) promptly inform Buyer of any written notices of default or violations that it receives related to the Leased Real Property, Manufacturing Facility or any Assigned Contracts; (k) not enter into any agreements with Design-Builder or the “Architect” for those persons identified on Schedule 7.2 (“Architect”) without Buyer’s consent1.5(d), which consent 75% at closing and the remaining 25% in accordance with such holder's Option Termination Agreement, Retention Agreement or Letter Agreement. As a result of the foregoing actions, at the time of Closing the issued and outstanding capital stock of Company shall not be unreasonably withheld, conditioned, or delayed; and (l) provide Buyer with the opportunity to attend all meetings and conference calls that Seller has with Design-Builder, Architect, FSMC, ESD, CCIDA or any Governmental Authority, to the extent such meetings or conference calls relate to the Purchased Assets, Assigned Contracts, or the Manufacturing Facilityconsist solely of shares of Company Common Stock.

Actions Prior to Closing. During the period prior A. Purchaser agrees that promptly after execution of this Agreement, it will make application to the issuing authority for the transfer of the Beverage Alcohol License Purchaser will use its best efforts to secure said License as quickly and as reasonably practicable and, in connection therewith, will comply with and carry out any and all of the requirements, demands, requests, rules, and regulations of the local issuing authority and State Division of Alcoholic Beverage Control, so as to expedite the approval of such application and transfer of said License to Purchaser B. Seller covenants and agrees that it shall provide Purchaser with any and all cooperation and assistance reasonably requested by Purchaser in connection with the application for the Beverage Alcohol License and any other Licenses/Consents. C. Seller covenants and agrees that it and its principals will continue until the Closing Dateto conduct the Business in the same manner as heretofore conducted and will not hire any new or additional employees (excepted as may otherwise be expressly agreed between Seller and Purchaser) or fail to fully compensate employees for all pay (vacation or other benefits) due, and, without limiting the generality of the foregoing will continue in force and effect and, as applicable, renew, the existing Beverage Alcohol License and all other Licenses/Consents; will perform all contracts in relation to the Business which by their terms require performance by Seller; will not remove or sell, or cause to be removed or sold, any Assets of the Business, except such merchandise as contemplated by this Agreement may be consumed or disposed of in the regular course of the business; will not materially increase the compensation payable to any officer, director or employee of the business; and will not enter into any contract or agreement, written or oral, in relation to the Business potentially binding Purchaser after the transfer of the Business to it, except as normal and ordinary commitments for the purchase of merchandise and supplies, unless otherwise expressly approved in writing by Buyer, Purchaser. D. Seller shall make available for inspection by Purchaser the books and records of the Business (including, without limitation, payroll records, tax returns, insurance policies, equipment and service contracts) upon reasonable notice during normal business hours. E. Seller shall provide to Purchaser a) keep the Landlord's and maintain the Manufacturing Facility, the Leased Manufacturing Equipment, and the Owned Personal Property in good operating condition and repair subject to normal wear and tear; (b) maintain and comply in all material respects with (except for expiration due to lapse of time) all Assigned Contracts in effect without change, except those Assigned Contracts which expire or terminate by their terms or as otherwise expressly provided herein; (c) comply in all material respects with the provisions of all Laws applicable Sublessor's written consents to the Manufacturing Facility and the Purchased Assets and its conduct of the Business; (d) not alter in any material respect the rate or basis of compensation of any Purchaser as assignee of the Facility Employees other than Leases (subject to Closing and execution by Seller and Purchaser of the Assignment and Assumption Agreement) and b) the Landlord's and Sublessor's Estoppel Certificates in the ordinary course favor of business; (e) Purchaser Seller shall use commercially reasonable its best efforts to resolve provide to Purchaser a Subordination, Non-disturbance and Attornment Agreement with any lender financing the matters identified Landlord All such instruments shall be in Schedule 5.10; (f) not sign a form satisfactory to Purchaser's counsel. F. The Seller shall prepare and execute under oath or affirmation a list of all creditors and tender the same to Purchaser's counsel and, with the assistance of Purchaser's counsel, shall in all respects comply with the Bulk Transfer provisions of New Jersey law relating to creditors. Seller shall be responsible to satisfy any sublease or license with respect Bulk Transfer obligations to the Leased Real Property; (g) not amend the Lease Agreement or CCIDA Lease Agreements, or amend in any material respect any other Assigned Contract; (h) maintain insurance for the Leased Real Property (to the extent maintained by Seller as New Jersey Division of the date of this Agreement), Owned Personal Property and Leased Manufacturing Equipment; (i) refrain from removing any items of Owned Personal Property or Leased Manufacturing Equipment (other than any obsolete items), unless such items are replaced with items of equal or greater value; (j) promptly inform Buyer of any written notices of default or violations that it receives related to the Leased Real Property, Manufacturing Facility or any Assigned Contracts; (k) not enter into any agreements with Design-Builder or the “Architect” identified on Schedule 7.2 (“Architect”) without Buyer’s consent, which consent shall not be unreasonably withheld, conditioned, or delayed; and (l) provide Buyer with the opportunity to attend all meetings and conference calls that Seller has with Design-Builder, Architect, FSMC, ESD, CCIDA or any Governmental Authority, to the extent such meetings or conference calls relate to the Purchased Assets, Assigned Contracts, or the Manufacturing FacilityTaxation.

Actions Prior to Closing. During Seller shall operate the period Acquired Assets and the Business prior to the Closing Date, except as contemplated by this Agreement or except as approved only in writing by Buyerthe Ordinary Course of Business. During such period, Seller shall use commercially reasonable efforts to (i) preserve intact its relationships with Persons having business dealings with Seller, and (ii) maintain the Travel Centers (Including making necessary repairs where Seller would typically do so in the Ordinary Course of Business). Without limiting the generality of the foregoing, Seller shall not, without the prior written consent of Buyer, undertake any of the following actions: (a) keep and maintain enter into any new Contract binding any material portion of the Manufacturing FacilityAcquired Assets subsequent to the Closing or release or relinquish any Assigned Contract, except in the Leased Manufacturing Equipment, and the Owned Personal Property in good operating condition and repair subject to normal wear and tear; Ordinary Course of Business; (b) maintain and comply in all material respects with (permit or allow any of the Acquired Assets to be subjected to any Encumbrances, except for expiration due to lapse of time) all Assigned Contracts in effect without change, except those Assigned Contracts which expire or terminate by their terms or as otherwise expressly provided herein; Permitted Encumbrances; (c) comply in all material respects with the provisions sell, transfer, or otherwise dispose of all Laws applicable to the Manufacturing Facility and the Purchased Assets and its conduct or any portion of the Acquired Assets, except for Inventory sold in the Ordinary Course of Business; ; (d) not alter (i) increase in any material respect manner the rate or basis of compensation of any of the Facility Employees its employees, other than normal scheduled increases using standards consistent with past practice or in the ordinary course Ordinary Course of business; Business, or (ii) pay or agree to pay, other than those explicitly agreed to by Buyer, any bonus, pension, retirement allowance, severance or other employee benefit not required or permitted by any existing Employee Benefit Plan or in the Ordinary Course of Business; (e) use commercially reasonable efforts change any accounting procedures or practices or its financial structure, except for any actions taken pursuant to resolve the matters identified in Schedule 5.10; Section 5.20 of this Agreement; (f) not sign take any sublease action to accelerate the generation of revenues beyond the level that would result from operations in the Ordinary Course of Business or license with respect to take any action the Leased Real Property; (g) not amend the Lease Agreement or CCIDA Lease Agreementstaking of which, or amend omit to take any action the omission of which, would cause any of the representations and warranties herein to fail to be true and correct in any material respect any other Assigned Contract; (h) maintain insurance for the Leased Real Property (to the extent maintained by Seller all respects as though made at and as of the date of this Agreement), Owned Personal Property and Leased Manufacturing Equipmentsuch action or omission; or (ig) refrain from removing agree or commit to do any items of Owned Personal Property or Leased Manufacturing Equipment (other than any obsolete items), unless such items are replaced with items of equal or greater value; (j) promptly inform Buyer of any written notices of default or violations that it receives related to the Leased Real Property, Manufacturing Facility or any Assigned Contracts; (k) not enter into any agreements with Design-Builder or the “Architect” identified on Schedule 7.2 (“Architect”) without Buyer’s consent, which consent shall not be unreasonably withheld, conditioned, or delayed; and (l) provide Buyer with the opportunity to attend all meetings and conference calls that Seller has with Design-Builder, Architect, FSMC, ESD, CCIDA or any Governmental Authority, to the extent such meetings or conference calls relate to the Purchased Assets, Assigned Contracts, or the Manufacturing Facilityforegoing.