PURSUANT TO ANY BONUS, PENSION, PROFIT-SHARING OR
OTHER PLAN OR COMMITMENT) OR GRANT ANY INCREASE IN THE COMPENSATION PAYABLE OR
TO BECOME PAYABLE TO ANY EMPLOYEE, EXCEPT IN ACCORDANCE WITH PRE-EXISTING
CONTRACTUAL PROVISIONS OR CONSISTENT WITH PAST PRACTICE;
(VIII)
MAKE OR COMMIT TO MAKE CAPITAL EXPENDITURES THAT
ARE NOT OTHERWISE IN THE ORDINARY COURSE OF BUSINESS, AND (X) THAT REQUIRE
AGGREGATE PAYMENTS IN EXCESS OF $500,000 PER WEEK FOR EACH WEEK BETWEEN THE
MEASUREMENT DATE AND THE
39
CLOSING DATE OR (Y) THAT REQUIRE AGGREGATE PAYMENTS AFTER THE CLOSING IN EXCESS
OF $2,000,000;
(IX)
PAY, LEND OR ADVANCE ANY AMOUNT TO, OR SELL,
TRANSFER OR LEASE ANY PROPERTIES OR ASSETS TO, OR ENTER INTO ANY AGREEMENT OR
ARRANGEMENT WITH, ANY OF ITS AFFILIATES OTHER THAN AMONG THE COMPANY AND THE
RETAINED SUBSIDIARIES;
(X)
FAIL TO KEEP IN FULL FORCE AND EFFECT
INSURANCE COMPARABLE IN AMOUNT AND SCOPE TO COVERAGE MAINTAINED AT THE DATE
HEREOF;
(XI)
MAKE ANY CHANGE IN ANY METHOD OF ACCOUNTING
OR ACCOUNTING PRINCIPLE OR METHOD EXCEPT FOR ANY SUCH CHANGE REQUIRED BY REASON
OF A CONCURRENT CHANGE IN GAAP, OR WRITE OFF AS UNCOLLECTIBLE ANY ACCOUNTS
RECEIVABLE EXCEPT IN THE ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST
PRACTICE;
(XII)
MAKE OR CHANGE ANY MATERIAL TAX ELECTION,
CHANGE AN ANNUAL ACCOUNTING PERIOD OR ADOPT OR CHANGE ANY MATERIAL ACCOUNTING
METHOD, FILE ANY AMENDED TAX RETURN, ENTER INTO ANY CLOSING AGREEMENT, SETTLE
ANY MATERIAL TAX CLAIM OR ASSESSMENT RELATING TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, SURRENDER ANY MATERIAL RIGHT TO CLAIM A REFUND OF TAXES, CONSENT
TO ANY EXTENSION OR WAIVER OF THE LIMITATION PERIOD APPLICABLE TO ANY TAX CLAIM
OR ASSESSMENT RELATING TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR TAKE ANY
OTHER SIMILAR ACTION RELATING TO THE FILING OF ANY TAX RETURN OR THE PAYMENT OF
ANY TAX;
(XIII)
(A) MODIFY, AMEND IN ANY MATERIAL RESPECT OR
TERMINATE ANY CONTRACT IN ANY MANNER THAT WOULD REASONABLY BE EXPECTED TO HAVE
AN ADVERSE EFFECT ON THE COMPANY AND THE RETAINED SUBSIDIARIES OR (B) MAKE OR
ENTER INTO SUPPLIER CONTRACTS (INCLUDING ANY PURCHASES UNDER TARIFFS) HAVING A
TERM OF MORE THAN 12 MONTHS THAT (X) WOULD HAVE PAYMENT OBLIGATIONS OVER THE
COURSE OF SUCH CONTRACTS IN EXCESS OF $1.0 MILLION IN THE AGGREGATE OR (Y) ARE
NOT OTHERWISE IN THE ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST PRACTICE;
(XIV)
SETTLE, RELEASE OR FORGIVE ANY MATERIAL
LITIGATION; OR
(XV)
COMMIT TO DO ANY OF THE FOREGOING.
(B)
FROM AND AFTER THE DATE HEREOF AND UNTIL THE
CLOSING DATE, LEUCADIA AND THE SELLER SHALL CAUSE EACH OF THE COMPANY AND ITS
SUBSIDIARIES TO:
(I)
CONTINUE TO MAINTAIN, IN ALL MATERIAL
RESPECTS, ITS ASSETS, PROPERTIES, RIGHTS AND OPERATIONS IN ACCORDANCE WITH
PRESENT PRACTICE IN A CONDITION SUITABLE FOR THEIR CURRENT USE;
(II)
FILE, WHEN DUE OR REQUIRED, ALL TAX
RETURNS AND OTHER REPORTS REQUIRED TO BE FILED AND PAY WHEN DUE ALL TAXES
LAWFULLY LEVIED OR ASSESSED AGAINST IT, UNLESS THE VALIDITY THEREOF IS CONTESTED
IN GOOD FAITH