Common use of Affirmative Conduct Prior to Effective Time of the Merger Clause in Contracts

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company and Company Sub shall do the following (and to the extent a failure by a Subsidiary of Company (other than Company Sub) to do any of the following would adversely affect Company or Company Sub or the transactions contemplated by this Agreement, Company and CXXXX shall cause such Subsidiary to do the following): (a) use their commercially reasonable efforts consistent with this Agreement to maintain and preserve intact their present business organizations (other than by virtue of the Restructuring and the Spin Off) and to maintain and preserve their relationships and goodwill with customers, employees and others having business relationships with the Business; (b) use their commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and Company Sub and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IP; (c) use their commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) perform their material contractual obligations and not become in material default on any such obligations; (e) pay all accounts payable and trade payables consistent with past practice and, in any event, as the same are due and payable, and maintain inventory consistent with past practice; (f) duly observe and conform in all material respects to all lawful requirements applicable to its business; (g) maintain their assets and properties in good condition and repair, normal wear and tear excepted; (h) file all Tax Returns and all extensions, where applicable, that are required to be filed with any tax authority in accordance with all applicable laws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; and (i) promptly notify Parent regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax liabilities or attributes of Company or Company Sub, or any actual or threatened collection enforcement activity by any Tax authority with respect to tax liabilities of Company or Company Sub. Except as expressly provided in this Section 6.2 (by reference to Subsidiaries of Company or to the Spun-Off Entities), none of the covenants and agreements contained in this Section 6.2 are applicable to the Spun-Off Entities.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company and Company Sub shall do the following (and to the extent a failure by a Subsidiary of Company (other than Company Sub) to do any of the following would adversely affect Company or Company Sub or the transactions contemplated by this Agreement, Company and CXXXX shall cause such Subsidiary to do the following):shall: (a) use their its commercially reasonable efforts consistent with this Agreement to maintain and preserve intact their its present business organizations (other than by virtue of the Restructuring and the Spin Off) organization and to maintain and preserve their its relationships and goodwill with customers, employees and others having business relationships with the BusinessCompany; (b) use their its commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and Company Sub and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IPCompany; (c) use their its commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) perform their its material contractual obligations and not become in material default on any such obligations; (e) pay all accounts payable and trade payables consistent with past practice and, in any event, as the same are due and payable, and maintain inventory consistent with past practice; (f) duly observe and conform in all material respects to all lawful requirements applicable to its business; (gf) maintain their its assets and properties in good condition and repair, normal wear and tear excepted; (hg) except as provided in Section 6.2(g) of the Company Disclosure Letter, file all Tax Returns and all extensions, where applicable, that are required to be filed with any tax authority in accordance with all applicable laws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; and (ih) promptly notify Parent regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax liabilities or attributes of Company or Company SubCompany, or any actual or threatened collection enforcement activity by any Tax authority with respect to tax liabilities of Company or Company Sub. Except as expressly provided in this Section 6.2 (by reference to Subsidiaries of Company or to the Spun-Off Entities), none of the covenants and agreements contained in this Section 6.2 are applicable to the Spun-Off EntitiesCompany.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company and Company Sub shall do the following (and to the extent a failure by a Subsidiary of Company (other than Company Sub) to do any of the following would adversely affect Company or Company Sub or the transactions contemplated by this Agreement, Company and CXXXX shall cause such Subsidiary to do the following):shall: (a) use their its commercially reasonable efforts consistent with this Agreement to maintain and preserve intact their its present business organizations (other than by virtue of the Restructuring and the Spin Off) organization and to maintain and preserve their its relationships and goodwill with customers, employees and others having business relationships with the BusinessCompany; (b) use their its commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and Company Sub and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IP; (c) use their its commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) perform their its material contractual obligations and not become in material default on any such obligations; (e) pay all accounts payable and trade payables consistent with past practice and, in any event, as the same are due and payable, and maintain inventory consistent with past practice; (f) duly observe and conform in all material respects to all lawful requirements applicable to its business; (gf) maintain their its assets and properties in good condition and repair, normal wear and tear excepted; (hg) file all Tax Returns and all extensions, where applicable, that are required to be filed with any tax authority in accordance with all applicable laws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; and (ih) promptly notify Parent regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax liabilities or attributes of Company or Company SubCompany, or any actual or threatened collection enforcement activity by any Tax authority with respect to tax liabilities of Company or Company Sub. Except as expressly provided in this Section 6.2 (by reference to Subsidiaries of Company or to the Spun-Off Entities), none of the covenants and agreements contained in this Section 6.2 are applicable to the Spun-Off EntitiesCompany.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company and Company Sub shall do the following (and to the extent a failure by a Subsidiary of Company (other than Company Sub) to do any of the following would adversely affect Company or Company Sub or the transactions contemplated by this Agreement, Company and CXXXX shall cause such Subsidiary to do the followingCompany Subsidiaries to): (a) use their its commercially reasonable efforts consistent with this Agreement to maintain and preserve intact their its present business organizations (other than by virtue of the Restructuring and the Spin Off) organization and to maintain and preserve their its relationships and goodwill with customersaccount holders, borrowers, employees and others having business relationships with Company or the BusinessCompany Subsidiaries; (b) use their its commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and Company Sub and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IPSubsidiaries; (c) use their its commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) perform their its material contractual obligations and not become in material default on any such obligations; (e) pay all accounts payable and trade payables consistent with past practice and, in any event, as the same are due and payable, and maintain inventory consistent with past practice; (f) duly observe and conform in all material respects to all lawful requirements applicable to its business; (gf) maintain their its assets and properties in good condition and repair, normal wear and tear excepted; (hg) file all Tax Returns and all extensions, where applicable, that are required to be filed with any tax authority in accordance with all applicable laws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; and; (ih) promptly notify Parent regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax liabilities or attributes of Company or Company SubCompany, or any actual or threatened collection enforcement activity by any Tax authority with respect to tax liabilities of Company; (i) make available to Parent monthly unaudited balance sheets and income statements of Company within 25 days after the close of each calendar month; (j) use its commercially reasonable efforts to obtain any third party consent with respect to any contract, agreement, lease, license, arrangement, permit or release that is material to the business of Company Sub. Except as expressly provided and the Company Subsidiaries on a consolidated basis or that is contemplated in this Section 6.2 Agreement as required in connection with the Merger; provided, however, that no such third party consent need be obtained if a material amount of monetary consideration is required; and (by reference to Subsidiaries k) maintain an allowance for loan and lease losses consistent with practices and methodology as in effect on the date of Company or the execution of this Agreement provided that the dollar amount of such allowance shall be, in any event, maintained at a level which is at least equal to the Spun-Off Entities)amount thereof at December 31, none of the covenants and agreements contained in this Section 6.2 are applicable to the Spun-Off Entities2003.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company and Company Sub shall do the following (and to the extent a failure by a Subsidiary of Company (other than Company Sub) to do any of the following would adversely affect Company or Company Sub or the transactions contemplated by this Agreement, Company and CXXXX shall cause such Subsidiary to do the followingCompany Subsidiaries to): (a) use their its commercially reasonable efforts consistent with this Agreement to maintain and preserve intact their its present business organizations (other than by virtue of the Restructuring and the Spin Off) organization and to maintain and preserve their its relationships and goodwill with customersaccount holders, borrowers, key employees and others having business relationships with Company or the BusinessCompany Subsidiaries; (b) use their its commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and Company Sub and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IPSubsidiaries; (c) use their its commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) use its commercially reasonable efforts to perform their its material contractual obligations and not become in material default on any such obligations; (e) pay all accounts payable and trade payables consistent with past practice and, in any event, as the same are due and payable, and maintain inventory consistent with past practice; (f) use its commercially reasonable efforts to duly observe and conform in all material respects to all lawful requirements applicable to its business; (gf) maintain their its assets and properties in good condition and repair, normal wear and tear excepted; (hg) file all Tax Returns and all extensions, where applicable, that are required to be filed with any tax authority in accordance with all applicable lawsLaws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; andLaws; (ih) promptly notify Parent regarding receipt from any tax authority of any written notification of the commencement of an auditaudit which could involve material financial consequences for the Company, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s 's report, any notice of proposed assessment, or any other similar written notification of potential adjustments to the Tax liabilities or attributes of Company or Company Subwhich could involve material financial consequences for the Company, or any actual or threatened collection enforcement activity of which Company is aware by any Tax authority with respect to tax liabilities of Company; (i) make available to Parent monthly unaudited balance sheets and income statements of Company and Bank, as soon as available, but in no event later than within 15 days after the end of each calendar month; (j) use its commercially reasonable efforts to obtain any third party consent with respect to any contract, agreement, lease, license, arrangement, permit or release that is material to the business of Company Sub. Except as expressly provided and the Company Subsidiaries on a consolidated basis or that is contemplated in this Section 6.2 Agreement as required in connection with the Merger or the Subsequent Mergers; (by reference k) maintain an allowance for loan losses consistent with practices and methodology as in effect on the date of the execution of this Agreement provided that the dollar amount of such allowance shall be, in any event (but subject to Subsidiaries of Company or applicable GAAP and regulatory accounting requirements and Law), maintained at a level which is at least equal to the Spun-Off Entities)amount thereof at December 31, none of 2004; and (l) except as otherwise required by applicable Law, manage Company's and the covenants Company Subsidiaries' respective assets and agreements contained liabilities in this Section 6.2 are applicable all material respects in accordance with Company's asset and liability management policy as in effect on the date hereof as previously disclosed to Parent, unless otherwise agreed by the Spun-Off Entitiesparties.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company and Company Sub shall do the following (and to the extent a failure by a Subsidiary of Company (other than Company Sub) to do any of the following would adversely affect Company or Company Sub or the transactions contemplated by this Agreement, Company and CXXXX XXXXX shall cause such Subsidiary to do the following): (a) use their commercially reasonable efforts consistent with this Agreement to maintain and preserve intact their present business organizations (other than by virtue of the Restructuring and the Spin Off) and to maintain and preserve their relationships and goodwill with customers, employees and others having business relationships with the Business; (b) use their commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and Company Sub and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IP; (c) use their commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) perform their material contractual obligations and not become in material default on any such obligations; (e) pay all accounts payable and trade payables consistent with past practice and, in any event, as the same are due and payable, and maintain inventory consistent with past practice; (f) duly observe and conform in all material respects to all lawful requirements applicable to its business; (g) maintain their assets and properties in good condition and repair, normal wear and tear excepted; (h) file all Tax Returns and all extensions, where applicable, that are required to be filed with any tax authority in accordance with all applicable laws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; and (i) promptly notify Parent regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax liabilities or attributes of Company or Company Sub, or any actual or threatened collection enforcement activity by any Tax authority with respect to tax liabilities of Company or Company Sub. Except as expressly provided in this Section 6.2 (by reference to Subsidiaries of Company or to the Spun-Off Entities), none of the covenants and agreements contained in this Section 6.2 are applicable to the Spun-Off Entities.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company and Company Sub shall do the following (and to the extent a failure by a Subsidiary of Company (other than Company Sub) to do any of the following would adversely affect Company or Company Sub or the transactions contemplated by this Agreement, Company and CXXXX shall cause such Subsidiary to do the followingCompany Subsidiaries to): (a) use their its commercially reasonable efforts consistent with this Agreement to maintain and preserve intact their its present business organizations (other than by virtue of the Restructuring and the Spin Off) organization and to maintain and preserve their its relationships and goodwill with customersaccount holders, borrowers, key employees and others having business relationships with Company or the BusinessCompany Subsidiaries; (b) use their its commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and Company Sub and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IPSubsidiaries; (c) use their its commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) use its commercially reasonable efforts to perform their its material contractual obligations and not become in material default on any such obligations; (e) pay all accounts payable and trade payables consistent with past practice and, in any event, as the same are due and payable, and maintain inventory consistent with past practice; (f) use its commercially reasonable efforts to duly observe and conform in all material respects to all lawful requirements applicable to its business; (gf) maintain their its assets and properties in good condition and repair, normal wear and tear excepted; (hg) file all Tax Returns and all extensions, where applicable, that are required to be filed with any tax authority in accordance with all applicable lawsLaws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; andLaws; (ih) promptly notify Parent regarding receipt from any tax authority of any written notification of the commencement of an auditaudit which could involve material financial consequences for the Company, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar written notification of potential adjustments to the Tax liabilities or attributes of Company or Company Subwhich could involve material financial consequences for the Company, or any actual or threatened collection enforcement activity of which Company is aware by any Tax authority with respect to tax liabilities of Company; (i) make available to Parent monthly unaudited balance sheets and income statements of Company and Bank, as soon as available, but in no event later than within 15 days after the end of each calendar month; (j) use its commercially reasonable efforts to obtain any third party consent with respect to any contract, agreement, lease, license, arrangement, permit or release that is material to the business of Company Sub. Except as expressly provided and the Company Subsidiaries on a consolidated basis or that is contemplated in this Section 6.2 Agreement as required in connection with the Merger or the Subsequent Mergers; (by reference k) maintain an allowance for loan losses consistent with practices and methodology as in effect on the date of the execution of this Agreement provided that the dollar amount of such allowance shall be, in any event (but subject to Subsidiaries of Company or applicable GAAP and regulatory accounting requirements and Law), maintained at a level which is at least equal to the Spun-Off Entities)amount thereof at December 31, none of 2004; and (l) except as otherwise required by applicable Law, manage Company’s and the covenants Company Subsidiaries’ respective assets and agreements contained liabilities in this Section 6.2 are applicable all material respects in accordance with Company’s asset and liability management policy as in effect on the date hereof as previously disclosed to Parent, unless otherwise agreed by the Spun-Off Entitiesparties.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company shall cause Company and Company Sub shall do the following (and to the extent a failure by a Subsidiary of Company (other than Company Sub) to do any of the following would adversely affect Company or Company Sub or the transactions contemplated by this Agreement, Company and CXXXX shall cause such Subsidiary to do the following):Subsidiaries to: (a) use their commercially reasonable efforts consistent with this Agreement to maintain and preserve intact their present business organizations (other than by virtue of the Restructuring and the Spin Off) organization and to maintain and preserve their relationships and goodwill with customers, employees and others having business relationships with the BusinessCompany and Company Subsidiaries; (b) use their commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and Company Sub and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IPCompany; (c) use their commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns they own or leases lease and on its their business operations; (d) perform their material contractual obligations and not become in material default on any such obligations; (e) pay duly observe and conform to all accounts payable and trade payables consistent with past practice and, in any event, as the same are due and payable, and maintain inventory consistent with past practiceapplicable Laws; (f) duly observe and conform in all material respects to all lawful requirements applicable to its business; (g) maintain their assets and properties in good condition and repair, normal wear and tear excepted; (hg) file all Tax Returns and all extensions, where applicable, that are required to be filed with any tax authority in accordance with all applicable laws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable lawsLaws; and (ih) promptly notify Parent regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax liabilities or attributes of Company or Company SubCompany, or any actual or threatened collection enforcement activity by any Tax authority with respect to tax liabilities of Company or Company Sub. Except as expressly provided in this Section 6.2 (by reference to Subsidiaries of Company or to the Spun-Off Entities), none of the covenants and agreements contained in this Section 6.2 are applicable to the Spun-Off EntitiesCompany.