Common use of Conduct Prior to Closing Clause in Contracts

Conduct Prior to Closing. Without in any way limiting any other obligations of the Vendor hereunder, during the period from the date hereof to the Time of Closing: (a) Conduct Business in the Ordinary Course. The Vendor shall, and shall cause the Windjammer Companies to, conduct the Business and the operations and affairs of the Vendor and the Windjammer Companies only in the ordinary and normal course of business consistent with past practice and in accordance with existing operating budgets, and the Windjammer Companies shall not, without the prior written consent of the Purchaser, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, would constitute a breach of any representation, warranty, covenant or other obligation of the Vendor contained herein, and provided further that none of the Vendor or the Windjammer Companies shall enter into any material Contracts with respect to any of the Windjammer Companies or the Business or spend in excess of $50,000 on any single expense item without the consent of the Purchaser, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the Purchaser acknowledges and agrees that the Vendor and its affiliated companies are in the process of arranging alternate financing to which is currently in place and such financing may involve some or all of the Windjammer Companies incurring additional debt, or amending the terms of existing indebtedness, and either providing additional security in respect thereof or amending the terms of existing security, including, without limitation, an assignment of existing security. Provided that any such indebtedness is repaid as part of the transactions contemplated by this Agreement and any additional security provided in respect thereof is discharged, the consent of the Purchaser shall not be required with respect to any aspect of such financing;

Conduct Prior to Closing. During the period from the date hereof through the Closing Date, except as expressly contemplated or permitted by this Agreement, the Equityholders shall cause KAR to operate its Business only in the ordinary course consistent with past practice, and shall use their commercially reasonable efforts to preserve intact their business organization, relationships and assets and maintain its rights, franchises, goodwill and business and Client, customer, officer and employee relations necessary to conduct the Business as currently conducted in all material respects. Without in any way limiting any other obligations of the Vendor hereunderforegoing, during the period from the date hereof through the Closing Date, except as provided in Schedule 6.1, the Equityholders shall not permit KAR to do any of the Time following without the prior written consent of ClosingBuyer: (a) Conduct Business declare, set aside, make or pay any dividend or other distribution (whether in the Ordinary Course. The Vendor shallcash, and shall cause the Windjammer Companies toequity interests or property or any combination thereof) in respect of its Membership Interests, conduct the Business and the operations and affairs capital stock or other equity interests; (b) purchase or redeem, directly or indirectly, any Membership Interests, or other equity interests in KAR except as contemplated in Section 2.3 of the Vendor and the Windjammer Companies only this Agreement or in the ordinary and normal course in connection with the termination of employment of any Equityholder; (c) issue or sell any Membership Interests or other equity interests in KAR; (d) incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise become responsible for obligations of any other Person, or make any loans or advances to any Person, except in the ordinary course of business consistent with past practice and practice, or issue or sell any debt securities; (e) mortgage, pledge or otherwise encumber any of its material properties or material assets, tangible or intangible, or otherwise dispose of any of its material assets or material properties or cancel, release or assign any indebtedness owed to it or any claims held by it, except in accordance the ordinary course of business consistent with existing operating budgetspast practice; (f) except in the ordinary course, and amend, waive or otherwise modify in any material respect the Windjammer Companies shall not, without the prior written consent terms of any of the PurchaserInvestment Contracts, including, but not limited to, reductions in the amount of fees owing to KAR under such Investment Contracts except in the ordinary course; (g) except as required by law or as set forth in the Disclosure Schedule, (i) grant or make any change in control, severance or termination payments to any Equityholder or any officer, employee or consultant of KAR except pursuant to plans or agreements in existence on the date hereof, (ii) enter into any transaction option, employment, deferred compensation or refrain other similar agreement (other than an agreement for employment "at will") with any Person (or enter into any amendment to any such existing agreement with any Equityholder or any officer, employee or consultant of KAR) other than in connection with the hiring of new employees by KAR in the ordinary course, (iii) increase benefits payable under any existing severance or termination pay policies or agreements, (iv) adopt, amend in any material respect or terminate any employment, bonus, profit-sharing, compensation, stock option, pension, deferred compensation or other plan, agreement, trust, fund or arrangement for the benefit of the Equityholders or officers, employees or consultants, or (v) pay, or provide for, any increase in compensation, bonus or other benefits payable to the Equityholders or officers, directors, employees or consultants of KAR except (A) for normal increases and bonuses in the ordinary course of business consistent with past practice, (B) as required by the terms of contracts or agreements in effect on the date hereof, and (C) as specifically contemplated by this Agreement and the Employment Agreements; (h) amend or agree to amend its Organizational Documents (or comparable instruments), or merge with or into or consolidate with, or agree to merge with or into or consolidate with, any other Person, subdivide or in any way reclassify any shares of its capital stock or its equity interests, or change or agree to change in any manner the rights of its outstanding capital stock or its equity interests; (i) change in any material respect its accounting practices or principles except as required by law or GAAP; (j) enter into or recommend that any Fund enter into any type of business different from doing any action that, if effected before that conducted by KAR or the Fund as of the date of this AgreementAgreement or enter into or participate in any additional joint ventures or partnerships; (k) other than in the ordinary course of business, would constitute acquire direct or indirect control over any Person or make any acquisition of all or a breach substantial part of the business or operations of any representationPerson or dispose of any business or operations; (l) pay, warrantydischarge, covenant settle or satisfy any claims or Liabilities other than in the ordinary course of business consistent with past practice; (m) except as directed by a Client, voluntarily divest itself of management of any mutual fund or assets under management; (n) except as and to the extent required, based on the written advice of counsel, in the exercise of its fiduciary obligations, in the case of any Fund, request that action be taken by the Fund Board, other than in connection with the approvals referred to in Section 6.2(b) hereof and actions in the ordinary course that would not reasonably be expected to have a Material Adverse Effect on KAR or the Fund. (o) except as set forth in the Disclosure Schedule, issue, sell or purchase, or issue any option, warrant, convertible or exchangeable security, right, subscription, call, unsatisfied preemptive right or other obligation agreement or right of the Vendor contained herein, and provided further that none of the Vendor any kind to purchase or the Windjammer Companies shall enter into any material Contracts with respect to any of the Windjammer Companies or the Business or spend in excess of $50,000 on any single expense item without the consent of the Purchaser, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the Purchaser acknowledges and agrees that the Vendor and its affiliated companies are in the process of arranging alternate financing to which is currently in place and such financing may involve some or all of the Windjammer Companies incurring additional debt, or amending the terms of existing indebtedness, and either providing additional security in respect thereof or amending the terms of existing security, otherwise acquire (including, without limitation, an assignment by exchange or conversion), or enter into any contracts, agreements or arrangements to issue or sell, any shares of existing security. Provided its capital stock or its equity interests; (p) create, renew, amend, terminate or cancel, or take any action that might result in the creation, renewal, amendment, termination or cancellation of, any such indebtedness is repaid Contract other than in the ordinary course of business consistent with past practice; (q) enter into, or agree to enter into, any contract, agreement or arrangement with any of its Affiliates other than those entered into in the ordinary course of business consistent with past practice; (r) except as part set forth in the Disclosure Schedule and except in the ordinary course of business consistent with past practice, incur or assume, or agree to incur or assume, any liability or obligation (whether or not currently due and payable) relating to its business or any of its assets; (s) authorize, agree (by contract or otherwise) or commit to do any of the transactions contemplated by this Agreement and any additional security provided in respect thereof is discharged, the consent of the Purchaser shall not be required with respect to any aspect of such financing;foregoing.

Conduct Prior to Closing. Each Seller other than PacMan and Partners ------------------------ LLC as to themselves shall, and each Seller shall cause each of its Subsidiaries to, conduct its business and each of their respective businesses, as the case may be, in the ordinary and usual course and to preserve its business organization and their respective business organizations and assets intact and maintain existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates. Without in any way limiting any other obligations the generality of the Vendor hereunderforegoing, during the period from the date hereof until the Effective Time, except as contemplated in any other Transaction Document or as Previously Disclosed, each such Seller other than PacMan and Partners LLC as to the Time of Closing: (a) Conduct Business in the Ordinary Course. The Vendor shallthemselves, and shall cause the Windjammer Companies to, conduct the Business and the operations and affairs of the Vendor and the Windjammer Companies only in the ordinary and normal course of business consistent with past practice and in accordance with existing operating budgets, and the Windjammer Companies shall not, and each Seller shall cause each of its Subsidiaries (as to PacMan, only including Holding LLC and its Subsidiaries) not to, do any of the following without the prior written consent of the Purchaser, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, would constitute a breach of any representation, warranty, covenant or other obligation of the Vendor contained herein, and provided further that none of the Vendor or the Windjammer Companies shall enter into any material Contracts with respect to any of the Windjammer Companies or the Business or spend in excess of $50,000 on any single expense item without the consent of the PurchaserAZOA, which consent shall not be unreasonably withheld. Notwithstanding : (a) issue, sell, pledge, grant, allocate, dispose of or encumber any Equity Interests in it or any of its Subsidiaries or any options, warrants, conversion or other rights or understandings of any kind, contingent or otherwise, to purchase any such Equity Interests; (b) admit any new partner or member; (c) directly or indirectly, adjust, split, combine or reclassify any of its Equity Interests; (d) declare, set aside, make or pay any dividend or other distribution in cash, stock or property in respect of its Equity Interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of its Equity Interests; (e) other than in the ordinary course of its business transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any of its or their material property or assets, tangible or intangible, or incur or modify any material indebtedness or other liability; (f) make, authorize or commit for any capital expenditures other than in the ordinary course of business or their respective businesses, as the case may be, or, by any means, make any acquisition of, or investment in, assets or stock of any other Person or entity, provided that the investment -------- restrictions contained in this clause (f) shall not apply to capital expenditures or investments made in the ordinary course of business; (g) subject to its fiduciary duties, propose that any action be taken by the Board of a Sponsored Investment Company, other than actions in the ordinary course of business that are not adverse to the interests of Advisors LP or Subsidiaries; (h) terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify any Compensation and Benefit Plan, including any agreement entered into pursuant to any Compensation and Benefit Plan; (i) amend, supplement or restate its or any of its Subsidiaries' Constituent Documents, as the case may be, or enter into any Written Consents which in effect amend, supplement or restate such Constituent Documents; (j) implement or adopt any change in any respect of its accounting practices, policies or principles other than as may be required by GAAP; (k) make or revoke any Tax election; (l) enter into any Contract that would constitute a Key Contract with any other Seller or any Affiliate or Subsidiary of any Seller, or make any amendment or modification to any such agreement except in the ordinary course of business; or (m) authorize or enter into an agreement to do any of the foregoing, the Purchaser acknowledges and agrees that the Vendor and its affiliated companies are in the process of arranging alternate financing to which is currently in place and such financing may involve some or all of the Windjammer Companies incurring additional debt, or amending the terms of existing indebtedness, and either providing additional security in respect thereof or amending the terms of existing security, including, without limitation, an assignment of existing security. Provided that any such indebtedness is repaid as part of the transactions contemplated by this Agreement and any additional security provided in respect thereof is discharged, the consent of the Purchaser shall not be required with respect to any aspect of such financing;.

Conduct Prior to Closing. Without in any way limiting any other obligations 5.1 Conduct of Business by the Vendor hereunder, during Affiliated Companies and Boundless. During the period from the date hereof of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, the Affiliated Companies and any Subsidiaries and Boundless shall, except to the Time of Closing: (a) Conduct Business extent that the other party shall otherwise consent in writing, carry on its business in the Ordinary Course. The Vendor shallusual, regular and shall cause the Windjammer Companies to, conduct the Business and the operations and affairs of the Vendor and the Windjammer Companies only in the ordinary and normal course of business consistent with past practice practices, in substantially the same manner as heretofore conducted and in accordance compliance with existing operating budgetsall applicable laws and regulations (except where noncompliance would not have a Material Adverse Effect), pay its debts and taxes when due subject to good faith disputes over such debts or taxes, pay or perform other material obligations when due, and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the Windjammer Companies shall notservices of its present officers, managers and employees, and (iii) preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. In addition, except as permitted or required by the terms of this Agreement or set forth on the Schedule 5.1 hereto, without the prior written consent of the Purchaserother party, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, the Affiliated Companies and any Subsidiaries and Boundless shall not do any of the following: (a) Waive any stock repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans; (b) Grant any severance or termination pay to any officer, manager or employee except pursuant to applicable law, written agreements outstanding, or policies existing on the date hereof and as previously or concurrently disclosed in writing or made available to the other party, or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement existing on the date hereof; (c) Except with respect to the Restructuring Agreements, transfer or license to any person or otherwise extend, amend or modify any material rights to any Intellectual Property, or enter into grants to transfer or license to any person future patent rights, other than in the ordinary course of business consistent with past practices provided that in no event shall any party license on an exclusive basis or sell any Intellectual Property; (d) Except for employment agreements in the ordinary course or otherwise scheduled or set forth in this Agreement, declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock, membership interests or ownership interests, or split, combine or reclassify any capital stock, membership interests or ownership interests, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, membership interests or ownership interests; (e) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock, membership interests or ownership interests, except repurchases of unvested shares, membership interests or ownership interests at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof; (f) Issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock, membership interests or ownership interests or any securities convertible into or exchangeable for shares of capital stock, membership interests or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock, membership interests or ownership interests or any securities convertible into or exchangeable for shares of capital stock, membership interests or ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, membership interests, ownership interests or convertible or exchangeable securities (except relating to employment and similar agreements); (g) Amend its Charter Documents; (h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the business of Boundless or the Affiliated Companies or any Subsidiary, as applicable, or enter into any joint ventures, strategic partnerships or alliances or other arrangements that provide for exclusivity of territory or otherwise restrict such party's ability to compete or to offer or sell any products or services; (i) Sell, lease, license, encumber or otherwise dispose of any properties or assets, except sales of inventory in the ordinary course of business consistent with past practice and, except for the sale, lease or disposition (other than through licensing) of property or assets which are not material, individually or in the aggregate, to the business of such party; (j) Incur any indebtedness for borrowed money in excess of $100,000 in the aggregate or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Boundless or the Affiliated Companies or any Subsidiary, as applicable, enter into any transaction "keep well" or refrain from doing other agreement to maintain any action thatfinancial statement condition or enter into any arrangement having the economic effect of any of the foregoing other than in the ordinary course of business of such party; (k) Adopt or amend any employee benefit plan, if effected before policy or arrangement, any employee stock purchase or employee stock option plan, or enter into any employment contract or collective bargaining agreement (other than offer letters and agreements entered into in the ordinary course of business consistent with past practice), pay any special bonus or special remuneration to any director or employee, or increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practices and other than for new hires in the ordinary course; (l) Pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement) other than the payment, would constitute a breach discharge, settlement or satisfaction, in the ordinary course of business consistent with past practices or in accordance with their terms, or liabilities recognized or disclosed in the most recent financial statements (or the notes thereto) of the Affiliated Companies or of any representationSubsidiary or of Boundless, warrantyas applicable, covenant or other obligation incurred since the date of such financial statements, or waive the benefits of, agree to modify in any manner, terminate, release any person from or knowingly fail to enforce any confidentiality or similar agreement to which the Affiliated Companies or any Subsidiary or Boundless is a party or a beneficiary; (m) Except in the ordinary course of business consistent with past practices, modify, amend or terminate any Material Contract of the Vendor contained hereinAffiliated Companies or any Subsidiary or Boundless, and provided further that none as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder; (n) Except as required by U.S. GAAP, revalue any of the Vendor its assets or the Windjammer Companies shall make any change in accounting methods, principles or practices; (o) Incur or enter into any material Contracts with respect agreement, contract or commitment requiring such party to any of the Windjammer Companies or the Business or spend pay in excess of $50,000 on 100,000 in any single expense item without the consent of the Purchaser12 month period, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the Purchaser acknowledges and agrees that the Vendor and its affiliated companies are other than in the process of arranging alternate financing to which is currently ordinary course or otherwise provided in place and such financing may involve some or all of the Windjammer Companies incurring additional debt, or amending the terms of existing indebtedness, and either providing additional security in respect thereof or amending the terms of existing security, including, without limitation, an assignment of existing security. Provided that any such indebtedness is repaid as part of the transactions contemplated by this Agreement and employment agreements which may be entered into by the Affiliated Companies or any additional security provided Subsidiary; (p) Engage in any action that could reasonably be expected to cause the Transaction to fail to qualify as a reorganization under Section 368 of the Code or a tax-deferred exchange of property under Section 351 of the Code; (q) Settle any litigation; (r) Make or rescind any Tax elections that, individually or in the aggregate, could be reasonably likely to adversely affect in any material respect thereof is dischargedthe Tax liability or Tax attributes of such party, settle or compromise any material income tax liability or, except as required by applicable law, materially change any method of accounting for Tax purposes or prepare or file any Return in a manner inconsistent with past practice; (s) Form, establish or acquire any Subsidiary; (t) Permit any Person to exercise any of its discretionary rights under any Plan to provide for the automatic acceleration of any outstanding options, the consent termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such plans; or (u) Agree in writing or otherwise agree, commit or resolve to take any of the Purchaser shall not be required with respect to any aspect of such financing;actions described in Section 5.1 (a) through (t) above.

Conduct Prior to Closing. Without From and after the date of this Agreement until the Closing, the Company and the Investor shall act with good faith towards, and shall use their reasonable efforts to consummate, the transactions contemplated by this Agreement, and neither the Company nor the Investor will take any action that would prohibit or impair its ability to consummate the transactions contemplated by this Agreement. From the date hereof until the Closing, the Company shall conduct its business in any way limiting any other obligations the ordinary course and shall use all reasonable efforts to preserve intact its business organizations and relationships with third parties and to keep available the services of the Vendor hereunderpresent directors, during officers and key employees. Without limiting the period generality of the foregoing, from the date hereof to until the Time of Closing: (a) Conduct Business in the Ordinary Course. The Vendor shall, and shall cause the Windjammer Companies to, conduct the Business and the operations and affairs of the Vendor and the Windjammer Companies only in the ordinary and normal course of business consistent with past practice and in accordance with existing operating budgets, and the Windjammer Companies shall notexcept as contemplated by this Agreement, without the prior written consent of the PurchaserInvestor: (a) the Company shall not adopt or propose (or agree to commit to) any change in the Certificate of Incorporation or its By-Laws; (b) other than in the ordinary course of business of the Company consistent with past practice, the Company shall not, sell or license any of the assets of the Company; (c) other than in the ordinary course of business of the Company consistent with past practice, the Company shall not acquire any assets of any other Person or Persons or acquire any equity, partnership or other interests in any other Person or Persons; (d) the Company shall not repay, redeem or repurchase any indebtedness of the Company or any shares of capital stock of the Company; (e) the Company shall not enter into any transaction with any director, executive officer or refrain from doing Affiliate of the Company out of the ordinary course of its business consistent with past practice; (f) the Company shall not (i) grant to any employee any increase in salary or other remuneration not consistent with past practices or any increase in severance or termination pay; (ii) grant or approve any general increase in salaries of all or a substantial portion of its employees not consistent with past practice; (iii) pay or award any bonus, incentive, compensation, service award or other like benefit for or to the credit of any employee except in accordance with written policy or consistent with past practice; or (iv) enter into any employment contract or severance arrangement with any employee except in accordance with written policy or consistent with past practice or adopt or amend in any material respect any of its employee benefit plans except as required by law; (g) the Company shall not take or agree to commit to take any action thatthat would make any representation or warranty of the Company hereunder required to be true at and as of the Closing as a condition to the Investor's obligations to consummate the transactions contemplated hereby, if effected before inaccurate at the Closing; and (h) the Company shall not agree or commit to do any of the foregoing. From the date hereof until the Closing, each of the Subsidiaries will be prohibited from taking any of the actions contemplated by the foregoing sentence without the prior written consent of the Investor. From and after the date of this AgreementAgreement until the Closing, would constitute a breach of any representationthe Company will permit the Investor and its officers, warrantydirectors, covenant or employees, counsel, accountants and other obligation authorized representatives of the Vendor contained herein, and provided further that none of the Vendor Investor or the Windjammer Companies shall enter into any material Contracts with respect to any of the Windjammer Companies or the Business or spend in excess its Affiliates to visit and inspect any of $50,000 on any single expense item without the consent of the Purchaserits properties, which consent shall not be unreasonably withheld. Notwithstanding the foregoingto examine its corporate, the Purchaser acknowledges financial and agrees that the Vendor operating records and its affiliated companies are in the process of arranging alternate financing to which is currently in place and such financing may involve some or all of the Windjammer Companies incurring additional debt, or amending the terms of existing indebtedness, and either providing additional security in respect make copies thereof or amending abstracts therefrom and to discuss its affairs, business practices, finances and accounts with their respective directors, officers and independent public accountants, as often as may be reasonably requested, upon reasonable advance notice to the terms of existing security, including, without limitation, an assignment of existing security. Provided that any such indebtedness is repaid as part of the transactions contemplated by this Agreement and any additional security provided in respect thereof is discharged, the consent of the Purchaser shall not be required with respect to any aspect of such financing;Company.

Conduct Prior to Closing. Without Except as otherwise specifically contemplated by this Agreement, as disclosed in any way limiting any other obligations Section 4.1 of the Vendor hereunderDisclosure Schedule, as required in connection with the Sale, or as required by law, the Companies covenant and agree that, unless the Purchaser shall otherwise consent (which consent, in the case of subsections (ix), (x) and (xii) in Section 4.1(b) below and, only as it relates to subsections (ix), (x) and (xii), subsection (xvi) in Section 4.1(b) below, shall not be unreasonably withheld, delayed or conditioned) in writing, during the period from the date hereof to of this Agreement until the Time earlier of the termination of this Agreement or the Closing: (a) Conduct Business in the Ordinary Course. The Vendor shall, and shall cause the Windjammer Companies to, conduct the Business and the operations and affairs business of the Vendor and the Windjammer Companies Subsidiaries shall in all material respects be conducted only in the ordinary and normal course of business consistent with past practice and in accordance with existing operating budgetspractices, and the Windjammer Companies shall notuse commercially reasonable efforts, without to maintain and preserve substantially intact in all material respects the prior written consent business organization, employees and advantageous business relationships of the PurchaserSubsidiaries. (b) In addition, enter into any transaction or refrain from doing any action that, if effected before but without limiting the date of this Agreement, would constitute a breach of any representation, warranty, covenant or other obligation generality of the Vendor contained hereinforegoing, and provided further that none of the Vendor Companies or any Subsidiaries shall directly or indirectly do any of the Windjammer Companies shall enter following: (i) issue or sell, or authorize or agree to the issuance or sale of, any shares of, or any options or rights of any kind to acquire any shares of, or any securities convertible into or exchangeable or exercisable for any shares of, capital stock of any class of any Subsidiary; (ii) acquire, transfer, sell, lease, pledge or encumber any assets material Contracts to any Subsidiaries, except in connection with investment activities in the ordinary course of business consistent with past practices ("Subsidiary Investing"); (iii) amend the charter or by-laws or similar organizational documents of any of the Subsidiaries; (iv) split, combine or reclassify any shares of the capital stock of the Subsidiaries or declare, set aside for payment or pay any dividend or distribution, payable in cash, stock, property or otherwise, with respect to any of the Windjammer capital stock of any of the Subsidiaries, other than, with respect to dividends or distributions cash dividends and distributions, by a Subsidiary to another Subsidiary (it being understood that no dividend or distribution has been paid or made or will be paid or made by any Subsidiary since September 30, 2000); (v) except pursuant to Section 5.5, enter into an agreement with respect to any merger, consolidation, liquidation or business combination involving any Subsidiary, or any acquisition or disposition of all or substantially all of the assets or securities of any of the Subsidiaries; (vi) except pursuant to Section 5.5 or in connection with Subsidiary Investing, enter into an agreement with respect to the disposition of a material amount of assets of any Subsidiary, or any release or relinquishment of any material contract rights of any Subsidiary; (vii) with respect to any Subsidiary, (A) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or (B) make any material investment either by purchase of stock or securities, contributions to capital (other than to wholly-owned Subsidiaries), property transfer or purchase of any property or assets of any other individual or entity, except in connection with Subsidiary Investing; (viii) with respect to any Subsidiary, other than in the ordinary course of business consistent with past practices, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or, except in connection with Subsidiary Investing, make any loans or advances; (A) other than in the ordinary course of business consistent with past practice, permit any Subsidiary to enter into any new Contract that would satisfy the definition of Material Contract if in effect on the date hereof or (B) terminate, amend, modify or waive compliance of any provision of any Material Contract in any respect materially adverse to any of the Subsidiaries; (x) except as set forth in Section 4.1 of the Disclosure Schedule, make or change any material Tax election, release, assign settle or compromise any material Tax liability, or waive any statute of limitations for any Tax claim or assessment unless such action would not reasonably be expected to increase the Tax liability of the Subsidiaries or the tax sharing obligation of any Subsidiary under this Agreement; (xi) except as may be required as result of a change in law, regulation or in generally accepted accounting principles, change any accounting principles or practices used by any Subsidiary; (xii) release, assign, settle or compromise any material claim or litigation relating to any Subsidiary; (xiii) other than as may be required as a result of a change in law, regulation or in generally accepted accounting principles, change any of the Subsidiary's reserving methods (it being understood that the foregoing shall not apply to changes in the amount of reserves); (xiv) with respect to any Subsidiary, pay, discharge or satisfy any claims, liabilities or obligations, other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practices; (xv) with respect to any Subsidiary, enter into any structured settlement agreement or arrangement, funding agreement or arrangement or reinsurance agreement or arrangement; provided that the Purchaser hereby consents that the Companies and Subsidiaries may, consistent with past practices, continue to enter into structured settlement agreements or arrangements, including any agreement to be the assignee of structured settlement payment obligations, so long as such structured settlement agreements or arrangements are subject to the Liberty Life Guarantee; or (xvi) agree or commit to do any of the foregoing. (c) None of the Companies or any Subsidiary shall adopt or amend in any material respect (except as may be required by law or permitted by or contemplated under this Agreement) any bonus, profit sharing, compensation, stock option, stock purchase, pension, retirement, deferred compensation, or other employee benefit plan, agreement, trust, fund or other arrangement for the Business benefit or spend welfare of any director, officer or employee or former director, officer or employee of any Subsidiary (other than commercially reasonable arrangements entered into with any new hires) or increase the compensation or fringe benefits of any employee or former director, officer or employee of any Subsidiary or pay any benefit not required by any existing plan, arrangement or agreement, except compensation increases for employees and non-executive officers in excess the ordinary course of $50,000 business consistent with past practices. (d) None of the Companies nor any Subsidiary shall take any action with respect to the grant of any severance or termination pay or with respect to any increase of benefits payable under its retention, severance or termination pay policies in effect on the date hereof with respect to employees of any single expense item without of the consent Subsidiaries. The Companies shall not amend or modify the Retention Plan after the date hereof to the extent any such amendment or modification relates to employees of the Subsidiaries or increases the costs to the Purchaser or any of the Subsidiaries under the Retention Plan. LFC has delivered to the Purchaser a true and complete copy of the Retention Plan. (e) Notwithstanding anything to the contrary contained in this Section 4.1, the Companies shall be permitted to cause, and shall cause, LASC to make a dividend or distribution to Keyport Life Insurance Company immediately prior to the Closing and effective at the same time as the amendments to the Administrative Services Agreement referred to in Section 1.2(d) of the Transition Services Agreement of (i) the issued and outstanding capital shares of KFSC and (ii) an amount in cash equal to the net worth of LASC as of such date. (f) The Insurance Subsidiaries shall manage their Subsidiary Investing in a manner that is consistent with past practices in all material respects and, within the reasonable business judgment of their senior management, consistent with the business plans provided to the Purchaser, which consent subject to the restrictions set forth in clauses (i) and (ii) below. On a periodic basis as reasonably requested by the Purchaser and reasonably available to the Subsidiaries, but in no event less frequently than 18 Business Days after the end of each calendar month, the Companies shall not be unreasonably withhelddeliver to the Purchaser such information regarding the duration and the asset/liability composition, duration matching of the Insurance Subsidiaries' general account investments as of such month end. Notwithstanding the foregoing: (i) The Insurance Subsidiaries shall not make additional commitments to make private equity investments (such as, but not limited to, venture funds, hedge funds and direct private equity investments) or other investments categorized by the Insurance Subsidiaries as "alternative investments" ("Restricted Investments"); provided, however, that this Section 4.1(f)(i) shall not prohibit the Insurance Subsidiaries from making additional investments in Restricted Investments to the extent required by law or existing contractual obligations. (ii) The Insurance Subsidiaries shall (x) invest new cash deposits from customers in investment grade securities and (y) reinvest proceeds (including payments of principal and interest) received from existing investments in below investment grade securities and investments ("Below Investment Grade Investments") in investment grade securities; provided, however, that (1) this Section 4.1(f)(ii) shall not prohibit the Insurance Subsidiaries from selling existing Below Investment Grade Investments and reinvesting the proceeds of such sales in other Below Investment Grade Investments and (2) this Section 4.1(f)(ii) shall not prohibit the Insurance Subsidiaries from making investments in Below Investment Grade Investments if, after giving effect to such investments, the Purchaser acknowledges and agrees that the Vendor and its affiliated companies are portion of their combined general investment accounts invested in the process of arranging alternate financing to which is currently in place and such financing may involve some or all Below Investment Grade Investments would not exceed 7.5% of the Windjammer Companies incurring additional debt, or amending the terms of existing indebtedness, and either providing additional security in respect thereof or amending the terms of existing security, including, without limitation, an assignment of existing security. Provided that any such indebtedness is repaid as part of the transactions contemplated by this Agreement and any additional security provided in respect thereof is discharged, the consent of the Purchaser shall not be required with respect to any aspect of such financing;total combined general investment accounts (including securities lending collateral).

Conduct Prior to Closing. During the period from the date hereof through the Closing Date except as expressly contemplated or permitted by this Agreement, the Equityholders shall cause each Company to operate its Business only in the usual, regular and ordinary course consistent with past practice, and shall use its reasonable best efforts to preserve intact its business organization, relationships and assets and maintain its rights, franchises, goodwill and business and Client, customer, officer and employee relations necessary to conduct the Businesses as currently conducted in all material respects. Without in any way limiting any other obligations of the Vendor hereunderforegoing, during the period from the date hereof through the Closing Date, the Equityholders shall not permit any Company to do any of the Time following without the prior written consent of ClosingBuyer: (a) Conduct Business purchase or redeem, directly or indirectly, any Partnership Interests, Shares or other equity interests in the Ordinary Course. The Vendor shallany Company; (b) issue or sell any Partnership Interests, and shall cause the Windjammer Companies toShares or other equity interests in any Company; (c) incur any indebtedness for borrowed money, conduct the Business and the operations and affairs assume, guarantee, endorse or otherwise become responsible for obligations of the Vendor and the Windjammer Companies only any other Person, or make any loans or advances to any Person, except in the ordinary and normal course of business consistent with past practice and practice, or issue or sell any debt securities; (d) mortgage, pledge or otherwise encumber any of its material properties or material assets, tangible or intangible, or otherwise dispose of any of its material assets or material properties or cancel, release or assign any indebtedness owed to it or any claims held by it, except in accordance the ordinary course of business consistent with existing operating budgetspast practice; (e) amend, and waive or otherwise modify in any material respect the Windjammer Companies shall not, without the prior written consent terms of any of the PurchaserInvestment Contracts, including, but not limited to, reductions in the amount of fees owing to any Company under such Investment Contracts; (f) except as required by law or as set forth in the Disclosure Schedule, (i) grant or make any change in control, severance or termination payments to any Equityholder or any officer, employee or consultant of any Company except pursuant to plans or agreements in existence on the date hereof, (ii) enter into any transaction option, employment, deferred compensation or refrain from doing other similar agreement (other than an agreement for employment "at will") with any action thatPerson (or enter into any amendment to any such existing agreement with any Equityholder or any officer, if effected before employee or consultant of any Company), (iii) increase benefits payable under any existing severance or termination pay policies or agreements, (iv) adopt, amend in any material respect or terminate any employment, bonus, profit-sharing, compensation, stock option, pension, deferred compensation or other plan, agreement, trust, fund or arrangement for the benefit of the Equityholders or officers, employees or consultants, or (v) pay, or provide for, any increase in compensation, bonus or other benefits payable to the Equityholders or officers, directors, employees or consultants of any Company except (A) for normal increases in the ordinary course of business consistent with past practice, (B) as required by the terms of contracts or agreements in effect on the date of hereof, and (C) as specifically contemplated by this Agreement, would constitute a breach of any representation, warranty, covenant or other obligation of the Vendor contained herein, Employment Agreements and provided further that none of the Vendor or the Windjammer Companies shall enter into any material Contracts with respect to any of the Windjammer Companies or the Business or spend in excess of $50,000 on any single expense item without the consent of the Purchaser, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the Purchaser acknowledges and agrees that the Vendor and its affiliated companies are in the process of arranging alternate financing to which is currently in place and such financing may involve some or all of the Windjammer Companies incurring additional debt, or amending the terms of existing indebtedness, and either providing additional security in respect thereof or amending the terms of existing security, including, without limitation, an assignment of existing security. Provided that any such indebtedness is repaid as part of the transactions contemplated by this Agreement and any additional security provided in respect thereof is discharged, the consent of the Purchaser shall not be required with respect to any aspect of such financingServicing Agreement;

Conduct Prior to Closing. Without in any way limiting any other obligations of the Vendor hereunder, during the period from the date hereof to the Time of Closing: (a) Conduct During the period beginning on the date of this Agreement through the earlier of the Closing or the termination of this Agreement (the “Pre-Closing Period”), except as otherwise contemplated by this Agreement or as Purchasers otherwise agree in writing in advance, Sellers shall conduct the Business in the Ordinary Course. The Vendor shall, ordinary course and shall cause the Windjammer Companies to, conduct use its commercially reasonable efforts to preserve intact the Business and its relationship with its customers, suppliers and service providers. Except as expressly required by applicable Law or as set forth in this Agreement, Sellers shall not and shall not permit their respective Affiliates to, without the operations and affairs consent of the Vendor and the Windjammer Companies only Purchasers in writing (such consent not to be unreasonably withheld, delayed or conditioned): (i) mortgage, lease, pledge or otherwise encumber any Acquired Assets or sell, transfer, license, permit to lapse or otherwise dispose of any Acquired Assets except, in each case, in the ordinary and normal course of business and consistent with past practice and practice; (ii) terminate or fail to exercise renewal options with respect to any Acquired Contract, make any material change in accordance with existing operating budgets, and the Windjammer Companies shall not, without the prior written consent of the Purchaser, or waive any material right under any Acquired Contract or enter into any transaction Contract related to the Product that would be binding on any Purchaser following the Closing; (iii) make any change in the manner in which Sellers or refrain from doing any action thattheir respective Affiliates generally extends rebates, if effected before discounts or credit to, or otherwise deal with, customers with respect to the Product or the Acquired Assets; (iv) except as announced prior to the date of this Agreement, would constitute as required by a breach of Governmental Entity or applicable Law, change any representation, warranty, covenant or other obligation selling price of the Vendor contained herein, and Product; provided further that none Purchasers will be deemed to have given its consent under this Section 7.1(a)(iv) unless Purchasers object to such proposed change on reasonable grounds no later than [***] Days after actual receipt by Purchasers from the Company of all reasonable information relating to such change; (v) accelerate the delivery or sale of the Vendor Product in a manner materially inconsistent with past practice and the ordinary course of business; (vi) commence, waive, release, assign, initiate, pay, discharge, settle or compromise any pending or threatened claim, action, litigation, arbitration or proceeding primarily related to the Product or the Windjammer Companies shall Acquired Assets; (vii) enter into any agreement or arrangement the purpose of which would be to limit or restrict the Commercialization of the Product in any material Contracts respect following the Closing; (viii) (A) revise or modify any promotional material (including any labeling) included in the Regulatory Documentation or (B) add, remove or otherwise alter in any material respect any references to the Product in any website controlled by any of the Sellers or their respective Affiliates or any of the content of such references in any such website, in each case ((A) and (B)), except as required by a Governmental Entity or as otherwise required by applicable Law; (ix) correspond, communicate or consult with the FDA or similar Governmental Entity, in each case with respect to the Product, outside the ordinary course of business without providing Purchasers with prior written notice and the opportunity to consult with Sellers with respect to such correspondence, communication or consultation; (x) (A) abandon, lapse or allow to lapse any Acquired Intellectual Property or (B) grant any license, sublicense or other right with respect to any Acquired Intellectual Property; (xi) except as required under any Seller Plan in accordance with its terms as of the Windjammer Companies date of this Agreement or by applicable Law, (A) increase the Business base salary (or spend wages), target incentive compensation opportunity or benefits of any Product Employee, except for (1) increases due to a promotion, (2) increases effective after [***] and (3) increases in excess benefits that apply generally to all participants under a Seller Plan, in each case, in the ordinary course of $50,000 on business and consistent with past practice, (B) grant, pay or increase any single expense item without severance, termination, retention or change in control pay or benefits to any Product Employee, (C) terminate the consent employment of any Product Employee, except for terminations of the Purchaseremployment of Product Employees for misconduct or other acts constituting “cause,” or (D) adopt, which consent shall not enter into, amend or terminate any Seller Plan (or any plan, agreement, program or policy that would be unreasonably withheld. Notwithstanding a Seller Plan if it were in existence as of the date hereof) that applies solely to Product Employees or (E) agree or commit to do any of (A), (B), (C) or (D); or (xii) agree or commit to do any of the foregoing. (b) Purchasers acknowledge and agree that nothing contained in this Agreement shall give Purchasers, directly or indirectly, the Purchaser acknowledges and agrees that right to control or direct Sellers’ or their Affiliates’ operations prior to the Vendor and its affiliated companies are in the process of arranging alternate financing to which is currently in place and such financing may involve some or all of the Windjammer Companies incurring additional debt, or amending the terms of existing indebtedness, and either providing additional security in respect thereof or amending the terms of existing security, including, without limitation, an assignment of existing security. Provided that any such indebtedness is repaid as part of the transactions contemplated by this Agreement and any additional security provided in respect thereof is discharged, the consent of the Purchaser shall not be required with respect to any aspect of such financing;Closing.

Conduct Prior to Closing. Without in any way limiting any other obligations of the Vendor hereunder, during the period from From the date hereof until the Closing, except as otherwise provided in this Agreement or consented to in writing by the Time of Closing: Purchaser (a) Conduct Business in the Ordinary Course. The Vendor shall, and shall cause the Windjammer Companies to, conduct the Business and the operations and affairs of the Vendor and the Windjammer Companies only in the ordinary and normal course of business consistent with past practice and in accordance with existing operating budgets, and the Windjammer Companies shall not, without the prior written consent of the Purchaser, enter into any transaction or refrain from doing any action that, if effected before the date of this Agreement, would constitute a breach of any representation, warranty, covenant or other obligation of the Vendor contained herein, and provided further that none of the Vendor or the Windjammer Companies shall enter into any material Contracts with respect to any of the Windjammer Companies or the Business or spend in excess of $50,000 on any single expense item without the consent of the Purchaser, which consent shall not be unreasonably withheld. Notwithstanding , delayed or conditioned): (a) each Vendor and the Parent shall use commercially reasonable efforts to cause MIC to: (i) conduct its business in the ordinary course of business; and (ii) maintain and preserve intact MIC’s current organization, business, franchise, credit ratings and regulatory standing (including its continued compliance with the Mortgage Insurer Capital Adequacy Test prescribed by OSFI) and to preserve the rights, franchises, goodwill and relationships of MIC’s employees, customers, lenders, suppliers, regulators and others having business relationships with MIC or any of its subsidiaries; (b) each Vendor and the Parent shall not cause MIC to, and shall use commercially reasonable efforts to prevent MIC and its subsidiaries from taking, including by exercising the rights of such Vendor and the Parent under the Shareholder Agreement, any action that would cause any of the following to occur with respect to MIC or any of its subsidiaries: (i) an amendment of the charter, by-laws or other organizational documents of MIC; (ii) a split, combination or reclassification of any shares of capital stock of MIC; (iii) an issuance or sale of any of capital stock by MIC, other than: (A) on conversion, exchange or exercise of options, warrants or other rights to purchase or obtain any of its capital stock outstanding on the date of this Agreement, and (B) the grant of options, warrants or other rights to purchase or obtain any of its capital stock (and any conversion, exchange or exercise thereof) in the ordinary course of business and consistent with past practice under MIC’s existing equity compensation program; (iv) an issuance or sale of any capital stock by a subsidiary of MIC, other than to MIC or a wholly-owned subsidiary of MIC; (v) incurrence, assumption or guarantee of any material indebtedness for borrowed money to the extent of the rights of such Vendor and the Parent under the Shareholder Agreement, except, for certainty, current obligations and liabilities incurred in the ordinary course of business; (vi) a sale or other disposition of any assets material to the business of MIC and its subsidiaries, taken as a whole, to the extent of the rights of such Vendor and the Parent under the Shareholder Agreement; (vii) an acquisition, by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any person or any division thereof for consideration, if such acquisition would be material to the business of MIC and its subsidiaries, taken as a whole, to the extent of the rights of such Vendor and the Parent under the Shareholder Agreement; (viii) adoption by MIC of any plan of merger, consolidation, reorganization, liquidation or dissolution or the making by MIC or any subsidiary of a filing of a petition in bankruptcy under any provisions of bankruptcy Law or consent to the filing of any bankruptcy petition against it; and (ix) entrance into any agreement to do any of the foregoing, or any action or omission that would result in any of the Purchaser acknowledges foregoing; provided that, the foregoing shall not require any action or inaction by the Parent Nominees, and agrees such obligations shall be limited to actions that may be taken by the Vendors in their capacities as shareholders of MIC and by the Parent and the Vendors as counterparties to certain agreements with MIC; and (c) except as required by Law or in connection with the Approvals, each Vendor and its affiliated companies are in the process of arranging alternate financing to which is currently in place and such financing may involve some or all of the Windjammer Companies incurring additional debtParent shall not enter into any agreement, or amending amend or terminate any existing agreement, between or among MIC or any of its subsidiaries, on the terms of existing indebtednessone hand, and either providing additional security in respect thereof a Vendor or amending the terms Parent or any of existing security, including, without limitation, an assignment of existing security. Provided that any such indebtedness is repaid as part of their respective affiliates (other than MIC and its subsidiaries) on the transactions contemplated by this Agreement and any additional security provided in respect thereof is discharged, the consent of the Purchaser shall not be required with respect to any aspect of such financing;other hand.

Conduct Prior to Closing. From the date of this Agreement to the Closing Date, and except to the extent that the other parties otherwise consent in writing, Pure or Pure Sub on the one hand, and Doral or Doral Sub on the other hand, will operate their businesses substantially as presently operated and only in the ordinary course and in compliance with all applicable laws, and use its best efforts to preserve intact its good reputation and present business organization and to preserve its relationships with persons having business dealings with it. Without in any way limiting any other obligations the generality of the Vendor hereunderforegoing, during the period from the date hereof to of this Agreement through the Time Closing Date, except for actions specifically contemplated in this Agreement, neither Pure or Pure Sub on the one hand, nor Doral or Doral Sub on the other hand, will, without the consent of Closingthe other: (a) Conduct Business in the Ordinary Course. The Vendor shallamend its respective organizational documents; (b) incur any liability or obligation, and shall cause the Windjammer Companies toor settle or negotiate any liability, conduct the Business and the operations and affairs of the Vendor and the Windjammer Companies only obligation or receivable, other than in the ordinary and normal course of business or encumber or permit the encumbrance of any properties or assets; (c) dispose of or contract to dispose of any property or assets except Pure Hydrocarbons or Doral Hydrocarbons in the ordinary course of business consistent with past practice and practice; (d) issue, deliver, sell, pledge or otherwise encumber or subject to any lien, any equity interests, securities, rights, warrants or options to acquire, any equity interests; (e) except as contemplated in accordance with existing operating budgetsthis Agreement, and the Windjammer Companies shall not(i) declare, without the prior written consent set aside or pay any dividends on, or make any other distributions in respect of the Purchaserequity interests, enter into or (ii) split, combine or reclassify any transaction equity interests or refrain from doing issue or authorize the issuance of any action thatother securities in respect of, if effected before in lieu of or in substitution for shares of equity interests; or (f) materially increase benefits or compensation expenses or any officer, director, or other key employee or pay any benefit or amount not required by a Plan or arrangement as in effect on the date of this Agreement, would constitute a breach of any representation, warranty, covenant or other obligation of the Vendor contained herein, and provided further that none of the Vendor or the Windjammer Companies shall enter into any material Contracts with respect Agreement to any of the Windjammer Companies or the Business or spend in excess of $50,000 on any single expense item without the consent of the Purchaser, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, the Purchaser acknowledges and agrees that the Vendor and its affiliated companies are in the process of arranging alternate financing to which is currently in place and such financing may involve some or all of the Windjammer Companies incurring additional debt, or amending the terms of existing indebtedness, and either providing additional security in respect thereof or amending the terms of existing security, including, without limitation, an assignment of existing security. Provided that any such indebtedness is repaid as part of the transactions contemplated by this Agreement and any additional security provided in respect thereof is discharged, the consent of the Purchaser shall not be required with respect to any aspect of such financing;person.