Common use of Activities Prior to Closing Clause in Contracts

Activities Prior to Closing. (a) Seller shall not enter into any new service or management contracts for the Property or modifications, renewals or terminations of any existing service or management contracts that would be binding on Purchaser after Closing, without the prior written consent of Purchaser, which consent may be granted or withheld in Purchaser’s reasonable discretion. If Purchaser does not notify Seller in writing of its disapproval within five (5) Business Days after receipt of written notice thereof from Seller, Purchaser shall be deemed to have approved of such requested action. Seller shall terminate, prior to the expiration of the term of the Seller Lease, all service or management contracts for the Property that Purchaser does not specifically pre-approve in writing, in Purchaser’s reasonable discretion, prior to Closing, which obligation shall survive the Closing. (b) At all times prior to Closing, Seller shall: (i) continue to operate and maintain the Property substantially in the same condition as exists on the Effective Date consistent in all material respects with its standards of operation and maintenance prevailing prior to the Effective Date (provided that Seller shall have no obligation to make any repairs or replacements of a capital nature); and (ii) insure the Property as it is insured as of the Effective Date. (c) Seller may file and/or maintain and prosecute an application for the reduction of the assessed valuation of the Property or any portion thereof for real estate taxes or a refund of real estate taxes previously paid (a “Tax Appeal Proceeding”). Seller shall have the right to withdraw, settle or otherwise compromise Tax Appeal Proceedings affecting real estate taxes assessed against the Property (i) for any fiscal period prior to the fiscal year in which the Closing shall occur without the prior consent of Purchaser, and (ii) for the fiscal year in which the Closing shall occur, provided Purchaser shall have consented with respect thereto, which consent shall not be unreasonably withheld or delayed and which consent shall be deemed granted in the event that Purchaser fails to respond to a written request for its consent within ten (10) Business Days. The amount of any tax refunds (net of reasonable attorneys’ fees and other reasonable, out-of-pocket costs of obtaining such tax refunds) with respect to any portion of the Property for the tax year in which the Apportionment Time occurs shall be apportioned between Seller and Purchaser as of the Apportionment Time. If, in lieu of a tax refund, a tax credit is received with respect to any portion of the Property for the tax year in which the Apportionment Time occurs, then (x) within thirty (30) days after receipt by Seller or Purchaser, as the case may be, of evidence of the actual amount of such tax credit (net of reasonable attorneys’ fees and other reasonable, out-of-pocket costs of obtaining such tax credit), the tax credit apportionment shall be readjusted between Seller and Purchaser, and (y) upon actual realization by Purchaser of a tax savings on account of such credit, Purchaser shall pay to Seller an amount equal to the savings realized (as apportioned). All refunds, credits or other benefits applicable to any fiscal period prior to the fiscal year in which the Closing shall occur shall belong solely to Seller (and Purchaser shall have no interest therein) and, if the same shall be paid to Purchaser or anyone acting on behalf of Purchaser, same shall be paid to Seller within five (5) days following receipt thereof. All refunds, credits or other benefits applicable to any fiscal period following the fiscal year in which the Closing shall occur shall belong solely to Purchaser (and Seller shall have no interest therein) and, if the same shall be paid to Seller or anyone acting on behalf of Seller, same shall be paid to Purchaser within ten (10) Business Days following receipt thereof. The provisions of this Section 6.6(d) shall survive the Closing. (d) Seller shall request and thereafter use commercially reasonable efforts to obtain Certificates of Compliance from the City of Cambridge Conservation Commission for the following two (2) Orders of Conditions: (i) Order of Conditions/Wetlands Protection Act (DEP File No. 123-75) filed with the Middlesex South Registry District of the Land Court (the “Land Court”) as Document No. 812701, and recorded in the Middlesex South District Registry of Deeds (the “Registry”) in Book 20254, Page 560; and (ii) Order of Conditions/Wetlands Protection Act (DEP File No. 123-80) filed with the Land Court as Document No. 824085, and recorded in the Registry in Book 20607, Page 263. Seller shall be responsible for the cost of recording and filing the Certificates of Compliance with the Registry and Land Court. The provisions of this Section 6.6(e) shall survive the Closing for a period of up to six (6) months. Notwithstanding anything to the contrary, Seller shall not be required to expend more than Twenty Five Thousand Dollars ($25,000) in the aggregate (inclusive of attorneys’ fees) to satisfy Seller’s obligations under this Section 6.6(e).

Activities Prior to Closing. (a) Seller shall not enter into any new service or management contracts for the Property or modifications, renewals or terminations of any existing service or management contracts that would be binding on Purchaser after Closing, without the prior written consent of Purchaser, which consent may be granted or withheld in Purchaser’s reasonable discretion. If Purchaser does not notify Seller in writing of its disapproval within five (5) Business Days after receipt of written notice thereof from Seller, Purchaser shall be deemed to have approved of such requested action. Seller shall terminate, prior Prior to the expiration of the term of the Seller Lease, all service or management contracts for the Property that Purchaser does not specifically pre-approve in writing, in Purchaser’s reasonable discretion, prior to Closing, which obligation shall survive the Closing. (b) At all times prior to Closing, Seller shall: : (a) not sell or further encumber all or any interest in the Property, (b) give Purchaser prompt written notice of: (i) (A) any casualty affecting all or any portion of the Property or (B) any other event of which other event Seller obtains actual knowledge which is specific to the Real Property and which either (1) constitutes a Material Adverse Effect or (2) Seller is otherwise obligated to notify Purchaser of pursuant to this Agreement, (ii) any pending or threatened condemnation proceeding or material litigation affecting the Real Property of which Seller receives actual written notice, (iii) any event or circumstance of which Seller has actual knowledge that makes any of Seller’s Representations under this Agreement materially untrue or incorrect, (iv) all written notices and other written correspondence sent by a Seller Party to, or received by a Seller Party from, Existing Lender or Ground Lessor, and (v) any other event required for Seller to comply with its obligations under this Section 5.5. (c) continue to operate and maintain insure the Property substantially in the same condition as exists on the Effective Date consistent in all material respects with its standards of operation and maintenance prevailing prior to the Effective Date (provided that Seller shall have no obligation to make any repairs or replacements of a capital nature); and (ii) insure the Property as it is insured as of the Effective Date. (cd) continue to comply with its obligations under the Loan Documents, Leases (including, without limitation, the administration of tenant improvement or other work to be performed by the landlord thereunder), Contracts and all other agreements of Seller, including the obligation to pay all Tenant Costs under Leases as and when due under the applicable Leases and other agreements; provided, however, that to the extent such compliance causes Seller may file and/or maintain to expend funds for obligations that are Purchaser’s obligation to pay pursuant to this Agreement, such amounts shall be set forth on the Closing Statement and prosecute an application Seller shall receive a credit to the Purchase Price at Closing for such amounts. Notwithstanding the foregoing, for the reduction sake of the assessed valuation of the Property or any portion thereof for real estate taxes or a refund of real estate taxes previously paid (a “Tax Appeal Proceeding”). clarity, Purchaser acknowledges and agrees that Seller shall have the right not be obligated to withdraw, settle or otherwise compromise Tax Appeal Proceedings affecting real estate taxes assessed against the Property perform (i) the CSX rail-side of the garage façade work (for any fiscal period prior to the fiscal year which Purchaser is receiving a credit at Closing as provided in which the Closing shall occur without the prior consent of Purchaser, and Section 7.4) or (ii) any drainage or other work that Seller has not expressly agreed to perform pursuant to this Agreement. With respect to the tenant improvement work performed by the landlord under the Autonomy and Photon leases referenced in Schedule 6.2(l), to the extent the work to be performed by the landlord under either of such leases is not completed prior to Closing, Seller shall assign the construction contract and related agreements for such work to Purchaser, pursuant to assignment and assumption instruments reasonably acceptable to the parties. (e) notify Purchaser and provide Purchaser with copies of any proposed Leases, renewals, terminations or material amendments to Leases for the fiscal year Property and obtain the prior written consent of Purchaser (which, in which the Closing shall occurcase of consents to be delivered under clause (iii) below, provided Purchaser shall have consented with respect thereto, which consent shall not be unreasonably withheld or delayed and which consent shall be deemed granted to the extent such enforcement action is in the event that ordinary course of enforcing Leases) before (i) issuing any non-binding proposals for proposed Leases, renewals, terminations or material amendments to Leases for the Property or responding to any such proposals, (ii) entering into any binding agreement or commitment to effectuate any such transactions or (iii) initiating any enforcement action against any Tenant. (f) notify Purchaser fails to respond to a written request for its consent within ten (10) Business Days. The amount and provide Purchaser with copies of any tax refunds (net of reasonable attorneys’ fees and other reasonable, out-of-pocket costs of obtaining such tax refunds) proposed billing statements for Tenants with respect to calendar year 2011 and obtain the prior written consent of Purchaser (which shall not be unreasonably withheld, conditioned or delayed) before issuing such billing statements to the respective Tenants. (g) send to Purchaser copies of weekly leasing activity reports and any portion material written notices sent by a Seller Party to, or received by a Seller Party with respect to, a Tenant, the Property or the Contracts. (h) continue to diligently supervise the contractors to ensure the completion of the Property for Lobby Work and the tax year in which the Apportionment Time occurs shall be apportioned between Seller and Purchaser as of the Apportionment Time. If, in lieu of a tax refund, a tax credit is received with respect to any portion of the Property for the tax year in which the Apportionment Time occurs, then (x) within thirty (30) days after receipt by Seller or Purchaser, as the case may be, of evidence of the actual amount of such tax credit (net of reasonable attorneys’ fees and other reasonable, out-of-pocket costs of obtaining such tax credit), the tax credit apportionment shall be readjusted between Seller and Purchaser, and (y) upon actual realization by Purchaser of a tax savings on account of such credit, Purchaser shall pay to Seller an amount equal to the savings realized (as apportioned). All refunds, credits or other benefits applicable to any fiscal period Cafe Work prior to the fiscal year Closing Date, and invite and afford Purchaser and/or its representatives the opportunity (where practicable) to participate in which all weekly meetings with contractors and otherwise afford Purchaser the Closing shall occur shall belong solely opportunity (where practicable) to Seller (participate in such supervision and Purchaser shall have no interest therein) and, if the same shall be paid to Purchaser or anyone acting on behalf of oversight as reasonably requested by Purchaser, same shall be paid to Seller within five (5) days following receipt thereof. All refunds, credits or other benefits applicable to any fiscal period following the fiscal year in which the Closing shall occur shall belong solely to Purchaser (and Seller shall have no interest therein) and, if the same shall be paid to Seller or anyone acting on behalf of Seller, same shall be paid to Purchaser within ten (10) Business Days following receipt thereof. The provisions of this Section 6.6(d) shall survive the Closing. (d) Seller shall request and thereafter use commercially reasonable efforts to obtain Certificates of Compliance from the City of Cambridge Conservation Commission for the following two (2) Orders of Conditions: (i) Order of Conditions/Wetlands Protection Act (DEP File No. 123-75) filed with continue to diligently supervise the Middlesex South Registry District progression of the Land Court (Garage Work, the “Land Court”Chiller Work and the work described in Section 5.1(e) as Document No. 812701in accordance with Article 8, and recorded in invite and afford Purchaser and/or its representatives the Middlesex South District Registry of Deeds opportunity (the “Registry”) in Book 20254, Page 560; and (ii) Order of Conditions/Wetlands Protection Act (DEP File No. 123-80) filed with the Land Court as Document No. 824085, and recorded in the Registry in Book 20607, Page 263. Seller shall be responsible for the cost of recording and filing the Certificates of Compliance with the Registry and Land Court. The provisions of this Section 6.6(e) shall survive the Closing for a period of up to six (6) months. Notwithstanding anything to the contrary, Seller shall not be required to expend more than Twenty Five Thousand Dollars ($25,000) in the aggregate (inclusive of attorneys’ feeswhere practicable) to satisfy Seller’s obligations under this Section 6.6(e)participate in all weekly meetings with contractors and otherwise afford Purchaser the opportunity (where practicable) to participate in such supervision and oversight as reasonably requested by Purchaser. (j) continue to operate and maintain the Property in substantially the same manner as it has heretofore been operated and maintained by Seller during the Ownership Period.

Activities Prior to Closing. 5.3.1 Until the earlier of the Closing or the termination of this Agreement, Seller shall (a) not make any material physical changes to the Property; (b) continue to manage the Property in substantially the same manner in which it is being managed as of the Effective Date; (c) not enter into any contracts or agreements that would be binding upon the Property after Closing, nor enter into any material amendment of, nor waive in writing any material right under, any existing Contract affecting the Property (other than termination of existing Contracts that are not Assigned Contracts); (d) not enter into any lease or any material amendment of, nor waive in writing any material right under, any existing lease; (e) not enter into, amend or waive in writing any right under any recorded document affecting the Property; (f) continue to carry its existing insurance through the Closing Date; (g) not remove any personal property unless it is replaced with a comparable item of equal quality and quantity as existed as of the time of such removal; (h) perform all of its obligations under any contracts, approvals, permits, licenses and entitlements affecting the Property; (i) not amend or waive any rights under any Contracts, approvals, permits, licenses and entitlements affecting the Property; (j) use commercially reasonably efforts to continue to process any pending applications for any approvals, permits, licenses and entitlements affecting the Property (other than termination of existing Contracts that are not Assigned Contracts); and (k) comply with Seller’s obligations under the purchase agreement related to the Takashima Property and use commercially reasonable efforts to acquire the Takashima Property prior to the Close of Escrow; provided, that if Seller requests to take any of the actions described in clauses (a), (c), (d), (e), (g), or (i) above, Buyer’s consent shall not be unreasonably withheld, conditioned or delayed. 5.3.2 Prior to the Closing, Seller will continue to process (a) the Village 3 Mitigation Plans through the Army Corps Water Control Board, (b) the Otay Water District Sub-Area Master Plan, and (c) the Village 8 East Wetlands Permit (the “In-Process Permits”). Seller and Buyer shall cooperate in the processing of the In-Process Permits and Seller shall not enter into any new service agreement with or management contracts for make any submissions to a governmental agency in connection with the Property or modifications, renewals or terminations of any existing service or management contracts that would be binding on Purchaser after ClosingIn-Process Permits, without the prior written consent of PurchaserBuyer, which consent may shall not be granted unreasonably withheld, conditioned or withheld in Purchaser’s reasonable discretiondelayed. If Purchaser does not notify Seller in writing of its disapproval Failure to timely respond within five (5) Business Days after receipt of written notice thereof from Seller, Purchaser shall be deemed to have approved of such requested actionapproval. Seller shall terminate, prior to the expiration of the term of the Seller Lease, all service or management contracts for the Property that Purchaser does not specifically pre-approve in writingSection 5.3.1(j) notwithstanding, in Purchaser’s reasonable discretionthe event Buyer reasonably withholds any consent requested by Seller, prior to Closing, which obligation shall survive the Closing. (b) At all times prior to Closing, Seller shall: (i) continue to operate and maintain the Property substantially in the same condition as exists on the Effective Date consistent in all material respects with its standards of operation and maintenance prevailing prior to the Effective Date (provided that Seller shall have no obligation to make any repairs or replacements of a capital nature); and (ii) insure continue processing the Property as it is insured as of the Effective DateIn-Process Permits. (c) Seller may file and/or maintain and prosecute an application for the reduction of the assessed valuation of the Property or any portion thereof for real estate taxes or a refund of real estate taxes previously paid (a “Tax Appeal Proceeding”). Seller shall have the right to withdraw, settle or otherwise compromise Tax Appeal Proceedings affecting real estate taxes assessed against the Property (i) for any fiscal period prior to the fiscal year in which the Closing shall occur without the prior consent of Purchaser, and (ii) for the fiscal year in which the Closing shall occur, provided Purchaser shall have consented with respect thereto, which consent shall not be unreasonably withheld or delayed and which consent shall be deemed granted in the event that Purchaser fails to respond to a written request for its consent within ten (10) Business Days. The amount of any tax refunds (net of reasonable attorneys’ fees and other reasonable, out-of-pocket costs of obtaining such tax refunds) with respect to any portion of the Property for the tax year in which the Apportionment Time occurs shall be apportioned between Seller and Purchaser as of the Apportionment Time. If, in lieu of a tax refund, a tax credit is received with respect to any portion of the Property for the tax year in which the Apportionment Time occurs, then (x) within thirty (30) days after receipt by Seller or Purchaser, as the case may be, of evidence of the actual amount of such tax credit (net of reasonable attorneys’ fees and other reasonable, out-of-pocket costs of obtaining such tax credit), the tax credit apportionment shall be readjusted between Seller and Purchaser, and (y) upon actual realization by Purchaser of a tax savings on account of such credit, Purchaser shall pay to Seller an amount equal to the savings realized (as apportioned). All refunds, credits or other benefits applicable to any fiscal period prior to the fiscal year in which the Closing shall occur shall belong solely to Seller (and Purchaser shall have no interest therein) and, if the same shall be paid to Purchaser or anyone acting on behalf of Purchaser, same shall be paid to Seller within five (5) days following receipt thereof. All refunds, credits or other benefits applicable to any fiscal period following the fiscal year in which the Closing shall occur shall belong solely to Purchaser (and Seller shall have no interest therein) and, if the same shall be paid to Seller or anyone acting on behalf of Seller, same shall be paid to Purchaser within ten (10) Business Days following receipt thereof. The provisions of this Section 6.6(d) shall survive the Closing. (d) Seller shall request and thereafter use commercially reasonable efforts to obtain Certificates of Compliance from the City of Cambridge Conservation Commission for the following two (2) Orders of Conditions: (i) Order of Conditions/Wetlands Protection Act (DEP File No. 123-75) filed with the Middlesex South Registry District of the Land Court (the “Land Court”) as Document No. 812701, and recorded in the Middlesex South District Registry of Deeds (the “Registry”) in Book 20254, Page 560; and (ii) Order of Conditions/Wetlands Protection Act (DEP File No. 123-80) filed with the Land Court as Document No. 824085, and recorded in the Registry in Book 20607, Page 263. Seller shall be responsible for the cost of recording and filing the Certificates of Compliance with the Registry and Land Court. The provisions of this Section 6.6(e) shall survive the Closing for a period of up to six (6) months. Notwithstanding anything to the contrary, Seller shall not be required to expend more than Twenty Five Thousand Dollars ($25,000) in the aggregate (inclusive of attorneys’ fees) to satisfy Seller’s obligations under this Section 6.6(e).

Activities Prior to Closing. Seller covenants and agrees that from and after the execution and delivery of this Agreement to and including the Closing Date: (a) Subject to the outstanding agreements between Buyer and Seller with respect to the nondisclosure of confidential information, Seller shall not enter into any new service cause the Corporations to: (1) afford to the officers, employees, attorneys, accountants and other authorized representatives of Buyer reasonable access, during normal business hours, to the offices, plants, properties, books and records of the Corporations in order that Buyer may have full opportunity to make such engineering, legal, financial, accounting, and other reviews or management contracts investigations thereof as Buyer shall reasonably desire to make (including such environmental investigations as Buyer or its representatives reasonably deem necessary to adequately assess the environmental situation relating to the assets, businesses and properties of the Corporations; (2) permit, and cause its independent public accountants to permit, Buyer and its independent public accountants to inspect the work papers of the accountants for the Property Corporations (other than those work papers which are proprietary to the accountants) and other records; and (3) furnish, and cause the officers and employees of the Corporations to furnish, to Buyer and its authorized representatives such additional financial and operating data and other information regarding their respective assets, properties, contracts, goodwill and business, as Buyer shall from time to time reasonably request including, without limitation, all interim financial and operating reports prepared by or modificationsfor Seller, renewals or terminations officers of any existing service or management contracts that would be binding on Purchaser after Closing, without the prior written consent of Purchaser, which consent may be granted or withheld in Purchaser’s reasonable discretion. If Purchaser does not notify Seller in writing of its disapproval within five (5) Business Days after receipt of written notice thereof from Seller, Purchaser shall be deemed to have approved of such requested action. Seller shall terminate, prior to the expiration of the term Corporations or any of the Seller Lease, all service or management contracts for the Property that Purchaser does not specifically pre-approve in writing, in Purchaser’s reasonable discretion, prior to Closing, which obligation shall survive the Closingtheir respective Affiliates. (b) At all times prior to Closing, Seller shall: (i) continue to operate and maintain the Property substantially The business of each Corporation shall be conducted in the same condition as exists on the Effective Date ordinary course consistent with current and past practices and in compliance with all material respects with its standards of operation applicable laws, rules and maintenance prevailing prior regulations, subject to the Effective Date (provided that Seller shall have no obligation restrictions contained in this Agreement; decisions with respect to make any repairs or replacements of a capital nature); and (ii) insure the Property as it is insured as management of the Effective Datebusiness of each Corporation (other than day-to-day decisions in the ordinary course) shall be made after consultation with Buyer. (c) Seller may file and/or maintain and prosecute an application for the reduction of the assessed valuation of the Property Except in accordance with existing employment agreements or any portion thereof for real estate taxes existing employment practices or a refund of real estate taxes previously paid (a “Tax Appeal Proceeding”). Seller shall have the right pursuant to withdraw, settle or otherwise compromise Tax Appeal Proceedings affecting real estate taxes assessed against the Property (i) for any fiscal period Buyer's prior to the fiscal year in which the Closing shall occur without the prior consent of Purchaser, and (ii) for the fiscal year in which the Closing shall occur, provided Purchaser shall have consented with respect theretowritten consent, which consent shall not be unreasonably withheld withheld, conditioned or delayed delayed, and which consent other than annual review and wage adjustments made on a monthly basis: (1) no increase shall be deemed granted made in the event that Purchaser fails compensation, bonuses or commissions payable or to respond to a written request for its consent within ten (10) Business Days. The amount become payable by any of any tax refunds (net of reasonable attorneys’ fees and other reasonable, out-of-pocket costs of obtaining such tax refunds) with respect the Corporations to any portion of the Property for the tax year in which the Apportionment Time occurs their respective officers, employees or agents; (2) no arrangement shall be apportioned between Seller made for any new, additional or increased bonuses, profit sharing plan, pension or retirement plan, or any similar plan relating to employees or agents; and Purchaser as of the Apportionment Time. If, in lieu of a tax refund, a tax credit is received with respect to any portion of the Property for the tax year in which the Apportionment Time occurs, then (x3) within thirty (30) days after receipt by Seller or Purchaser, as the case may be, of evidence of the actual amount of such tax credit (net of reasonable attorneys’ fees and other reasonable, out-of-pocket costs of obtaining such tax credit), the tax credit apportionment no material change shall be readjusted between Seller and Purchasereffected in management, and (y) upon actual realization by Purchaser of a tax savings on account of such credit, Purchaser shall pay to Seller an amount equal to the savings realized (as apportioned). All refunds, credits personnel policies or other benefits applicable to any fiscal period prior to the fiscal year in which the Closing shall occur shall belong solely to Seller (and Purchaser shall have no interest therein) and, if the same shall be paid to Purchaser or anyone acting on behalf of Purchaser, same shall be paid to Seller within five (5) days following receipt thereof. All refunds, credits or other benefits applicable to any fiscal period following the fiscal year in which the Closing shall occur shall belong solely to Purchaser (and Seller shall have no interest therein) and, if the same shall be paid to Seller or anyone acting on behalf of Seller, same shall be paid to Purchaser within ten (10) Business Days following receipt thereof. The provisions of this Section 6.6(d) shall survive the Closingemployee benefits. (d) Other than purchase or sale orders in the ordinary course of business, no contract or commitment for which any of the Corporations shall have a liability following the Closing Date in excess of $25,000 as to any single contract or commitment or $100,000 in the aggregate shall be entered into by or on behalf of such Corporation without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. None of the Corporations shall enter into any barter or trade agreements under which any of them will have any liability following the Closing Date. (e) Other than sales of inventory and finished goods in the ordinary course of business, none of the properties and assets of the Corporations shall be sold, transferred, conveyed, leased, mortgaged, hypothecated or otherwise disposed of or encumbered except by Permitted Liens or with the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, unless in the case of tangible personal property such property through normal usage becomes unusable or substantially unusable. The Corporations shall maintain their respective inventory levels in accordance with past practice, except for changes in inventory levels resulting from or due to changes by the Corporations in product service policies or procedures. (f) Seller shall request and thereafter use commercially its reasonable best efforts to cause each Corporation to use reasonable efforts to preserve intact their respective businesses, to keep available the services of their present employee workforce and to preserve the goodwill of their customers and others having business relations with them. (g) Seller shall use its reasonable best efforts to obtain Certificates of Compliance from the City of Cambridge Conservation Commission for Required Consents prior to the following two Closing Date. (2h) Orders of Conditions: (i) Order of Conditions/Wetlands Protection Act (DEP File No. 123-75) filed with the Middlesex South Registry District If any of the Land Court Corporations receives any findings, orders, complaints, citations or notices prior to Closing which states that any aspect of its operations violates in any material respect any rule or regulation of any governmental authority (each an "Administrative Violation"), Seller shall promptly notify Buyer of the “Land Court”) as Document No. 812701Administrative Violation, and recorded in Seller shall cause such Corporation to use its reasonable efforts to remove or correct the Middlesex South District Registry of Deeds (the “Registry”) in Book 20254, Page 560; and (ii) Order of Conditions/Wetlands Protection Act (DEP File No. 123-80) filed with the Land Court as Document No. 824085Administrative Violation, and recorded in the Registry in Book 20607, Page 263. Seller shall such Corporation to be responsible for the cost payment of recording and filing (or cause the Certificates current liabilities of Compliance with the Registry and Land Court. The provisions Corporation, as of the Closing Date, to reflect a reasonable reserve for) all costs associated therewith, including, any attorneys' fees, fines or back pay that may be assessed. (i) Until the earlier of the Closing or the termination of this Agreement in accordance with Section 6.6(e3.1 hereof, none of (A) Seller, (B) the Corporations or (C) any of their respective administrators, personal representatives, officers, employees, agents or representatives shall, directly or indirectly, through brokers or otherwise, initiate or solicit any offers, bids or indications of interest, or negotiate with any Person other than Buyer or its Affiliates with respect to (1) the sale of any of the Purchased Stock, any other Stock of the Corporations or the properties and assets of the Corporations (other than sales or other dispositions of inventory and finished goods in the ordinary course of business) or (2) any other business combination involving any of the Corporations, nor shall survive any of them furnish to any Person, or authorize any Person to furnish, any information concerning the Closing for business of any of the Corporations with a period view to soliciting or negotiating any transactions of up the sort described in clause (1) or (2) above. -42- If any Person should seek to six initiate discussions or negotiations relative to a transaction of the sort described in clause (61) months. Notwithstanding anything to the contraryor (2) above, Seller shall notify Buyer within two Business Days of Seller's becoming aware thereof. (j) Seller shall use its best efforts to cause each of the Corporations to: (1) collect its accounts receivable in the ordinary course of its business and consistent with past practice, and (except for discounts for prompt payment thereof granted in the ordinary course) not accelerate the collection of, settle, compromise or waive any material right with respect to any of its accounts receivable without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed; (2) pay its trade accounts payable in the ordinary course of its business and consistent with past practice and not default in any material respect under, or breach any term or provision of, or fail in any material respects to perform, or suffer or permit to exist any condition or event which, after notice or lapse of time, or both, would constitute a default under, any Lease, agreement, permit, license, consent or insurance policy, if any such default, breach, failure to perform, or condition, or the exercise of any rights or remedies as a result thereof could have a Material Adverse Effect; and (3) refrain from engaging in any Stock Transactions or making any Restricted Payments. (k) Seller shall promptly notify Buyer of any material adverse change in the assets or liabilities, businesses or conditions, financial or otherwise, the results of operations or prospects of the Corporations of which Seller has knowledge, whether as a result of any legislative or regulatory change, revocation of any license or rights to do business, fire, explosion, accident, casualty, labor trouble, flood, drought, civil disorder, riot, war or other hostility or terrorist act, storm, condemnation, act of God or other public force, or otherwise. (l) Seller will not (and will not allow any of the Corporations to) take any action or engage in any transaction which would render any representation and warranty of Seller inaccurate in any material respect as of the date hereof or as of the Closing Date. (m) None of the Corporations shall make any payments to, or enter into any transactions with, any of their respective Affiliates or Seller (other than employment arrangements currently in effect and transactions listed on Schedule 4.1(t)), except to the extent (1) the same are reflected on the Closing Balance Sheet as accrued current liabilities of such Corporation, or (2) the payment or transaction is required to expend more settle a balance with Affiliates or Seller as of the Closing Date. (n) Without Buyer's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, none of the Corporations shall enter into any agreement or understanding with any governmental authority which would subject any of them to injunctive or other equitable relief or give rise to any financial obligation. (o) Seller will not revoke the election of any of the Corporations to be taxed as an S corporation within the meaning of Code Sections 1361 and 1362. Seller and the Corporations will not take or allow any action (other than Twenty Five Thousand Dollars ($25,000the sale of the Purchased Stock pursuant to this Agreement) that would result in the aggregate termination of the status as any of the Corporations as a validly electing S corporation within the meaning of Code Sections 1361 and 1362. (inclusive p) Seller shall prepare or cause to be prepared and file or cause to be filed all Tax returns for each of attorneys’ fees) the Corporations for all periods ending on or prior to satisfy the Closing Date which are to be filed after the Closing Date. Seller shall permit Buyer to review and comment on each such Tax return described in the preceding sentence prior to filing and shall make such revisions to such Tax returns as are reasonably requested by Buyer. To the extent permitted by applicable law, Seller shall include any income, gain, loss, deduction or other tax items for such periods on its Tax returns in a manner consistent with the Schedule K-1s furnished by the Corporations to Seller for such periods. From and after the Closing, Buyer shall permit Seller and Seller’s obligations under this Section 6.6(e)'s professional advisors access to the books and records of the Corporations to the extent reasonably necessary or helpful for Seller to prepare Tax returns for each of the Corporations for all periods ending on or prior to the Closing Date which are to be filed after the Closing Date. Buyer shall cooperate fully, and shall cause the Corporations to cooperate fully, as and to the extent reasonably requested by Seller, in connection with the preparation by Seller of such Tax returns to be prepared by Seller. Such cooperation shall include, but not be limited to, the retention of records and information reasonably relevant to the preparation, filing and submission of such Tax returns by Seller.

Activities Prior to Closing. (ai) Seller shall not not, from and after the Execution Date, enter into any new service or management contracts for the Property or amendments, modifications, extensions, renewals or terminations of any existing service Property Contracts, agreements related to Bookings, the Leases or management contracts the Union Contract (except for Property Contracts which may be entered into to the extent set forth in clause (ii) below, modifications to existing Bookings so long as such Bookings remain at market rates and terms and cancellations of Bookings at any guest’s request) or enter into any new lease or contract (other than reservations for the use of any guest rooms that are in the ordinary course of business and at market rates and terms, and including any commitments or reservations for the use of any meeting rooms, banquet facilities, convention facilities or other facilities in the Hotel-Related Units in the ordinary course of business and on market rates and terms; reservations for the use of any guest rooms and commitments or reservations for the use of any meeting rooms, banquet facilities, convention facilities or other facilities in the Hotel-Related Units, together with the rent and/or other considerations, if any, owed by guests, tenants, licensees or concessionaires for such use, the “Bookings”), in each case that would affect the Property after the Closing Date. (ii) Purchaser agrees to assume the Property Contracts, subject to the provisions set forth herein. Purchaser shall notify Seller at least ten (10) Business Days prior Closing as to which Property Contracts Purchaser wishes Seller (or Hotel Manager on behalf of Seller) to terminate in accordance with their terms (each such contracts, a “Terminable Contract”). Seller agrees that Purchaser shall have the right to terminate (or request the termination of) any Property Contract even if Purchaser elects to retain Hotel Manager pursuant to the Interim Jumeirah Agreement. Notwithstanding anything to the contrary contained herein, Seller shall have no liability to Purchaser for the refusal by any counterparty under a Property Contract to consent to the assignment of such Property Contract to Seller, and in such event, any such Property Contract (for which such counterparty’s consent is required by the terms of such Property Contract and not given) and any liabilities thereunder shall not be binding assumed by Purchaser. Seller may enter into any Property Contract (new and amendments) after the date hereof (x) in the ordinary course of business and provided such Property Contract is terminable without penalty or payment of a fee on Purchaser after Closing, without no more than thirty (30) days’ notice or (y) with the prior written consent of Purchaser, which consent may be granted or withheld Purchaser in Purchaser’s reasonable discretion. If Purchaser does not notify Seller in writing of its disapproval within five (5) Business Days after receipt of written notice thereof from Seller, Purchaser shall be deemed to have approved of such requested action. Seller shall terminate, prior to the expiration of the term of the Seller Lease, all service or management contracts for the Property that Purchaser does not specifically pre-approve in writing, in Purchaser’s reasonable discretion, prior to Closing, which obligation shall survive the Closingaccordance with Section 4.3(c). (b) At all times prior to the Closing, Seller shall: shall continue to (i) continue operate the Hotel-Related Units in a prudent manner, substantially consistent with past practice using its reasonable efforts to operate and preserve intact the goodwill of the Hotel-Related Units with its existing clientele, subject to Seller’s obligations under Section 4.3(i), (ii) maintain the Property in its existing condition and state of repair, ordinary wear and tear excepted, subject to the occurrence of any casualty and condemnation, (iii) replenish and maintain Personal Property and any other consumables, inventory, operating supplies and equipment necessary to operate the Hotel-Related Units in a manner consistent with past practices and maintain substantially in the same condition levels of consumables, operating supplies, inventory and furniture, fixtures and equipment as exists in existence at the Property on the Effective Date consistent in all material respects with its standards of operation and maintenance prevailing prior to the Effective Date (Execution Date; provided that Seller shall have no obligation to make any repairs or replacements of a capital nature); replenish branded materials, and (iiiv) insure maintain insurance with respect to the Property Hotel-Related Units with the coverages as it is insured as set forth in the existing insurance policies covering the Hotel-Related Units, provided, however, that a breach of this clause (iv) shall have no consequence unless a casualty occurs prior to Closing or the Effective Dateearlier termination of this Agreement. (c) Seller may file and/or maintain and prosecute an application for the reduction of the assessed valuation of the Property When Purchaser’s consent is required pursuant to Section 4.3(a) or any portion thereof for real estate taxes or a refund of real estate taxes previously paid (a “Tax Appeal Proceeding”Section 4.3(g). Seller shall have the right to withdraw, settle or otherwise compromise Tax Appeal Proceedings affecting real estate taxes assessed against the Property (i) for any fiscal period prior to the fiscal year in which the Closing shall occur without the prior consent of Purchaser, and (ii) for the fiscal year in which the Closing shall occur, provided Purchaser shall have consented with respect thereto, which consent shall not be unreasonably withheld or delayed and which consent shall be deemed granted in the event that Purchaser fails to respond to a written request for its consent within ten (10) Business Days. The amount of any tax refunds (net of reasonable attorneys’ fees and other reasonable, out-of-pocket costs of obtaining such tax refunds) with respect to any portion of the Property for the tax year in which the Apportionment Time occurs shall be apportioned between Seller and Purchaser as of the Apportionment Time. If, in lieu of a tax refund, a tax credit is received with respect to any portion of the Property for the tax year in which the Apportionment Time occurs, then (x) within thirty (30) days after receipt by Seller or Purchaser, as the case may be, of evidence of the actual amount of such tax credit (net of reasonable attorneys’ fees and other reasonable, out-of-pocket costs of obtaining such tax credit), the tax credit apportionment shall be readjusted between Seller and Purchaser, and (y) upon actual realization by Purchaser of a tax savings on account of such credit, Purchaser shall pay to Seller an amount equal to the savings realized (as apportioned). All refunds, credits or other benefits applicable to any fiscal period prior to the fiscal year in which the Closing shall occur shall belong solely to Seller (and Purchaser shall have no interest therein) and, if the same shall be paid to Purchaser or anyone acting on behalf of Purchaser, same shall be paid to Seller within five (5) days following receipt thereof. All refunds, credits or other benefits applicable to any fiscal period following the fiscal year in which the Closing shall occur shall belong solely to Purchaser (and Seller shall have no interest therein) and, if the same shall be paid to Seller or anyone acting on behalf of Seller, same shall be paid to Purchaser within ten (10) Business Days following after receipt thereoffrom Seller of a written request for consent to proposed Property Contracts (new and amendments) within which to grant or withhold consent, which consent may be given or withheld in Purchaser’s sole and absolute discretion. The provisions of this Section 6.6(dIf Purchaser fails or refuses to act within such ten (10) Business Day period, Purchaser shall survive the Closingbe deemed to have withheld its consent; provided, that Purchaser shall be deemed to have granted such consent after failing or refusing to act within such ten (10) Business Day period if such new or amended Property Contract is terminable without charge or penalty upon sale or on thirty (30) days’ or less notice. (d) Seller shall request not sell, mortgage, pledge, hypothecate, or otherwise transfer or dispose of all or any part of the Property or any interest therein at any time after the date hereof and thereafter prior to the Closing Date, other than (i) with respect to replacement of depleted Personal Property and the expiration of Property Contracts in the ordinary course of business or upon termination in accordance with the terms of this Agreement, (ii) reservations of transient guests of the Hotel-Related Units in the Premises in accordance with the provisions of this Agreement, (iii) Permitted Exceptions and (iv) the maintenance of the liens or assignments as required by any existing mortgage and mezzanine financing with respect to the Property which exist on the Execution Date (and all of which shall be terminated as of the Closing unless Purchaser has elected to have Seller’s lender(s) assign such liens or assignments to Purchaser’s lender or lenders pursuant to Section 4.3(j) below). (e) Except for (i) emergency repairs and replacements, and (ii) capital expenditures permitted hereunder to restore the Property after a casualty or condemnation, Seller shall not commit to, make or pay for any capital expenditure, without the written consent of Purchaser. All such work shall be undertaken in a first-class workmanlike manner, lien-free and in accordance with all applicable legal requirements and insurance requirements. (f) During the period prior to Closing and for the six (6) month period after Closing, the parties agree to reasonably cooperate and also to consult on a regular basis and coordinate their activities, including, without limitation, those relating to employee matters, Bookings and Reservations, and changing the branding of the Condominium Units so as to facilitate a smooth transition of the operations of the Condominium Units and the continued proper performance by the employees of the Condominium Units of their respective duties up to Closing. To the extent Purchaser requests that any executive or managerial-level employees of the Hotel Manager remain at the Property to assist with the transition during the twenty-four (24) hour periods immediately prior to and immediately following the Cut-Off Time, Purchaser shall arrange for each such employee to be lodged in the Hotel-Related Units on a complimentary basis with complimentary food and beverage (excluding alcoholic beverages) and laundry services. Seller shall reasonably cooperate with Purchaser to effectuate the transfer of all Intangible Property, Hotel Unit IP, Books and Records and such other data with respect to past, present and future guests of the Hotel-Related Units in the possession of Seller or any of Seller’s Affiliates as may be reasonably necessary in order to permit Purchaser to honor Bookings and Reservations in place as of the Closing with respect to the period from and after Closing. In addition, Seller shall use commercially reasonable efforts to obtain Certificates maintain all Bookings and Reservations and shall not affirmatively relocate any Bookings or Reservations in effect from time to time with respect to the period from and after the Closing Date to any other hotels owned or operated by Seller or any of Compliance from the City of Cambridge Conservation Commission for the following two Seller’s Affiliates. (2g) Orders of Conditions: Seller shall not (i) Order of Conditions/Wetlands Protection Act (DEP File No. 123-75) filed with the Middlesex South Registry District vote for any material increase in any common charges in respect of the Land Court Essex House Condominium, (ii) agree to amend any Condominium Documents, (iii) call a meeting of unit owners or (iv) otherwise take any action with respect to the operation of the Essex House Condominium which is reasonably likely to result in a Material Adverse Effect, in each case without Purchaser’s consent in accordance with Section 4.3(c); provided, however, no such consent shall be required to take any action imposed by applicable law or that is necessary to provide or maintain essential operations at the Property. Seller shall (A) exercise all rights and comply with all obligations under the Condominium Declaration in substantially the same manner as it generally did prior to the date hereof; (B) forward copies of all correspondence, email and other documents received by any governmental agency including, but not limited to, the Office of the Attorney General of the State of New York (the “Land CourtOAG”); and (C) as Document No. 812701make available to Purchaser at the Condominium Board’s office all minutes of Condominium Board meetings held after the execution of this Agreement provided Purchaser shall have no right to copy or retain such minutes. (h) Seller shall expeditiously, after the mutual execution and delivery of this Agreement, and recorded in at Seller’s sole cost and expense, request a “no-action letter” from the Middlesex South District Registry OAG stating that the OAG shall take no action and not require the filing of Deeds an offering plan or an amendment to the 2006 Plan, with respect to the transactions contemplated herein (the “RegistryNo-Action Application”). In connection with Seller’s No-Action Application, Purchaser shall execute and deliver an “Affidavit of Offeree,” substantially in the form annexed hereto as Exhibit 4.3(h)(1) and Seller shall execute and deliver an “Affidavit of Offeror,” substantially in Book 20254the form annexed hereto as Exhibit 4.3(h)(2). Seller shall simultaneously with its submission of its No-Action Application to the OAG deliver a copy of such No-Action Application (together with all attachments thereto and related documents) to Purchaser or its representatives. Seller and Purchaser hereby agree to cooperate with each other and each party’s respective counsel to provide additional information and execute any additional documents in connection with the No-Action Application if required by the OAG. Purchaser shall promptly, Page 560; upon Seller’s request and to the extent reasonably necessary, review and join in any application, submission or other form or documentation reasonably required. The parties hereto acknowledge and agree that prior to the Closing, Seller does not intend to file an amendment with the OAG extending the term of the 2006 Plan (as hereinafter defined). (i) Seller shall cause Hotel Manager to stop (i) accepting Bookings and Reservations under the Hotel Manager’s awards programs from and after the Execution Date, and (ii) Order issuing vouchers, certificates, or other forms of Conditions/Wetlands Protection Act script for free or discounted hotel rooms or food and beverage at the Hotel-Related Units from and after the Execution Date. (DEP File No. 123-80j) filed (i) Not later than ten (10) Business Days prior to the Closing Date (with evidence thereof concurrently being provided to Purchaser), Seller shall deliver to the lender under the existing mortgage loan encumbering the Property (the “Existing Lender”) a written request, in the form attached hereto as Exhibit 4.3(j), asking the Existing Lender to assign the existing mortgage or mortgages (or to sever the same and deliver documentation of a portion thereof) (a “Mortgage Assignment”) to one or more Persons designated by Purchaser (a “Purchaser’s Lender Designee”) provided that Seller’s obligation under this Section 4.3(j)(i) shall be limited to: (A) depositing with a reputable overnight courier such written request, (B) subsequently designating to the Existing Lender the Purchaser’s Lender Designee, and (C) at Closing, satisfying all outstanding indebtedness secured by such mortgage or mortgages and any mezzanine debt reflected in such mortgage or mortgages in accordance with the Land Court as Document No. 824085provisions of such mortgage or mortgages providing for such assignment. (ii) Purchaser’s counsel, at the sole cost and recorded expense of Purchaser, shall prepare the documentation for such assignment, except to the extent that the Existing Lender requires that its counsel prepare such documentation (in which event Purchaser shall reimburse such Existing Lender upon request the Registry in Book 20607, Page 263. Seller cost of such preparation) and Purchaser shall be responsible for any expense which the cost Existing Lender incurs, and seeks to recover from Seller, arising from the preparation or review of recording and filing mortgage assignment documentation. (iii) If at or prior to Closing: (A) Purchaser has paid the Certificates reasonable attorneys’ fees of Compliance the Existing Lender with the Registry and Land Court. The provisions of this Section 6.6(e) shall survive the Closing for a period of up to six (6) months. Notwithstanding anything respect to the contrarypreparation, Seller delivery and performance of such an Mortgage Assignment; (B) Purchaser shall have executed and delivered to the Existing Lender and/or the Title Company an executed Affidavit under Section 275 of the New York Real Property Law; and (C) a Mortgage Assignment is not be then prohibited by any federal, state or local law, rule, regulation, order, or by any other governmental authority, and the Existing Lender fails to execute and deliver the Mortgage Assignment, Purchaser may withhold from the Balance of the Purchase Price at Closing fifty percent (50%) of the amount of any mortgage recording tax Purchaser is required to expend more than Twenty Five Thousand Dollars pay as a consequence of such failure by the Existing Lender. Additionally, if Seller elects to pursue a claim against the Existing Lender for failure to deliver the Mortgage Assignment, Purchaser shall pay for ($25,000or reimburse Seller for) fifty percent (50%) of the costs and expenses incurred by Seller in the aggregate (inclusive of attorneys’ fees) to satisfy Seller’s obligations under this Section 6.6(e)pursuing such claim.