Common use of Conduct of Business by Parent and Merger Sub Clause in Contracts

Conduct of Business by Parent and Merger Sub. (a) Each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, the Parent Parties shall, and shall cause each of the other Parent Entities to, (i) conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use its commercially reasonable efforts to maintain its material assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of any Parent Entities’ control excepted), keep available the services of its present officers, maintain all Parent Insurance Policies and maintain the status of Parent as a REIT. (b) The Parent Parties shall (i) use their commercially reasonable efforts to obtain the opinions of counsel referred to in Section 7.3(e) and Section 7.2(f), (ii) deliver to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC and DLA Piper (US) an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC and DLA Piper (US) to render the opinion described in Section 7.2(f) and Section 7.3(f), respectively, on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “Parent Tax Representation Letter”), and (iii) deliver to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent and the Parent Operating Partnership, containing representations of Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC to render the opinion described in Section 7.3(e) on the Closing Date. (c) Without limiting the foregoing, each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, and except as may be required by the Starwood Transaction Documents, the Parent Parties shall not, and shall not cause or permit any of the other Parent Entities to, do any of the following: (i) amend or propose to amend the Parent Charter or Parent Bylaws (or such equivalent organizational or governing documents of any Parent Subsidiary material to Parent and the Parent Subsidiaries, considered as a whole, if such amendment would be adverse to Parent or the Company); (ii) split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests of Parent, Merger Sub or any other Parent Subsidiary; (iii) declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or any Parent Subsidiary or other equity securities or ownership interests in Parent or any Parent Subsidiary, except for (A) the declaration and payment by Parent of regular dividends in accordance with past practice and not for any interim period prior to the Effective Time, at an annual rate not to exceed $0.6939 per share of Parent Common Stock, (B) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such Parent Subsidiary, and (C) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such Parent Subsidiary; provided, however, that, notwithstanding the restriction on dividends and other distributions in this Section 6.2(c)(iii), and subject to Section 6.14, Parent and any Parent Subsidiary shall be permitted to make distributions, including under Sections 857, 858 or 860 of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code or avoid or reduce the imposition of any entity level income or excise Tax under the Code; (iv) except pursuant to the Parent SRP, redeem, repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests of Parent; (v) fail to maintain all financial books and records in all material respects in accordance with GAAP (or any interpretation thereof) or make any material change to its methods of accounting in effect as of December 31, 2013, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (vi) take any action, or fail to take any action, which action or failure would reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary (1) to cease to be treated as any of (x) a partnership or disregarded entity for U.S. federal income Tax purposes or (y) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be, or (2) that is not treated as a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code as the date hereof to be so treated; (vii) enter into any new line of business; (viii) fail to duly and timely file all material reports and other material documents required to be filed with the SEC and with any Governmental Authority; (ix) adopt a plan of complete liquidation or resolutions providing for or authorizing such liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization of Parent; (x) except for (A) transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) issuances of Parent Common Shares upon the exercise or settlement of any Parent option and issuances of equity or equity-based awards under the Parent equity plans set forth in Section 6.2(c)(x) of the Parent Disclosure Letter, or (C) in a public or private offering for cash or property, or (D) as otherwise contemplated in this Section 6.2, issue, sell, pledge, dispose, encumber or grant any shares of Parent’s or any of the Parent Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Parent’s or any of the Parent Subsidiaries’ capital stock or other equity interests; (xi) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Parent Subsidiary), if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xii) enter into, modify, amend, renew or terminate any Parent Affiliate Transaction, if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xiii) subject to Section 8.1, take any action that would reasonably be expected to prevent or materially delay the consummation of transactions contemplated by this Agreement; or (xiv) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (d) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Parent Board, upon advice of counsel to Parent, is reasonably necessary for Parent to continue to avoid incurring entity level income or excise Taxes under the Code or to maintain its qualification as a REIT under the Code, including making dividend or other distribution payments to stockholders of Parent in accordance with this Agreement or otherwise. (e) Nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or any Parent Subsidiary’s operations prior to the Effective Time, and nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or any Company Subsidiary’s operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its subsidiaries’ respective operations.

Conduct of Business by Parent and Merger Sub. (a) Each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, the Parent Parties shall, and shall cause each of the other Parent Entities to, (i) conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use its commercially reasonable best efforts to maintain its material assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of any Parent Entities’ control excepted), preserve intact in all material respects its current business organization, goodwill, ongoing businesses and relationships with third parties, keep available the services of its present officers, maintain all Parent Insurance Policies and maintain the status of Parent as a REIT. (b) The Parent Parties shall (i) use their commercially reasonable efforts to obtain the opinions of counsel referred to in Section 7.3(e) and Section 7.2(f7.3(f), (ii) deliver to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC and DLA Piper (US) Proskauer Rose LLP an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC and DLA Piper (US) Proskauer Rose LLP to render the opinion described in Section 7.2(f7.3(e) and Section 7.3(f), respectively, on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “Parent Tax Representation Letter”)Date, and (iii) deliver to BakerWeil, Donelson, Bearman, Xxxxxxxx Gotshal & Xxxxxxxxx, PC an Mxxxxx LLP and Dxxxx Xxxxxx LLP officer’s certificatecertificates, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent, in form and substance as set forth in Exhibit C, with such changes as are mutually agreeable to the Company and Parent and the (a “Parent Operating PartnershipTax Representation Letter”), containing representations of Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable BakerWeil, Donelson, Bearman, Xxxxxxxx Gotshal & Xxxxxxxxx, PC Mxxxxx LLP to render an opinion on the opinion described in Section 7.3(e) effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date, as described in Section 7.3(f), respectively, and Dxxxx Xxxxxx LLP to render an opinion on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date, as described in Section 7.2(f), respectively. (c) Without limiting the foregoing, each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be consented to agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, and except as may be required by the Starwood Transaction Documents, the Parent Parties shall not, and shall not cause or permit any of the other Parent Entities to, do any of the following: (i) amend or propose to amend the Parent Charter or Parent Bylaws (or such equivalent organizational or governing documents of any Parent Subsidiary material to Parent and the Parent Subsidiaries, considered as a whole, if such amendment would be adverse to Parent or the Company); (ii) split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests of Parent, Merger Sub or any other Parent Subsidiary; (iii) declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or any Parent Subsidiary or other equity securities or ownership interests in Parent or any Parent Subsidiary, except for (A) the declaration and payment by Parent of regular dividends monthly dividends, for full monthly periods in accordance with past practice and not for any interim period prior to the Effective Time, at an annual rate not to exceed $0.6939 0.935 per share of Parent Common Stock, (B) the declaration and payment of dividends or other distributions to Parent by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such indirectly wholly owned Parent Subsidiary, and (C) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such Parent Subsidiary; provided, however, that, notwithstanding the restriction on dividends and other distributions in this Section 6.2(c)(iii), and subject to Section 6.14, Parent and any Parent Subsidiary shall be permitted to make distributions, including under Sections 857, 858 or 860 of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code or and avoid or reduce the imposition of any entity level income or excise Tax under the Code; (iv) except pursuant to the Parent SRP, redeem, repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests of ParentParent or a Parent Subsidiary, other than the withholding of shares of Parent Common Stock to satisfy withholding Tax obligations with respect to awards granted pursuant to the Parent Stock Plans; (v) fail to maintain all financial books and records in all material respects in accordance with GAAP except (or any interpretation thereofA) or make any material change to its methods of accounting in effect as of December 31, 2013, except as required for issuances by a change in GAAP wholly owned Parent Subsidiary to Parent or another wholly owned Parent Subsidiary, (or any interpretation thereofB) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (vi) take any action, or fail to take any action, which action or failure would reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary (1) to cease to be treated as any of (x) a partnership or disregarded entity for U.S. federal income Tax purposes or (y) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be, or (2) that is not treated as a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code as the date hereof to be so treated; (vii) enter into any new line of business; (viii) fail to duly and timely file all material reports and other material documents required to be filed with the SEC and with any Governmental Authority; (ix) adopt a plan of complete liquidation or resolutions providing for or authorizing such liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization of Parent; (x) except for (A) transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) issuances of Parent Common Shares upon the exercise or settlement of any Parent option and issuances of equity or equity-based awards under the Parent equity plans set forth in Section 6.2(c)(x) of the Parent Disclosure Letter, or (C) for issuances of Parent’s securities pursuant to any registration statement under the Securities Act effective as of the date hereof, (D) for issuances by the Parent Operating Partnership of Parent OP Units in a public or private offering for cash or connection with the acquisition of real property, or (DE) as otherwise contemplated in this Section 6.26.2(c)(vi), issue, sell, pledge, dispose, encumber or grant any shares of Parent’s or any of the Parent Parents Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Parent’s or any of Parent Subsidiaries’ capital stock or other equity interests; provided, however, that Parent may issue shares of Parent Common Stock pursuant to the Parent Stock Plans to the extent required under the terms of the Parent Stock Plans as in effect as of the date of this Agreement or as may be granted after the date of this Agreement under Section 6.1(c)(vi); (vi) except as set forth on Section 6.2(c)(vi) of the Parent Disclosure Letter or in the ordinary course of business consistent with past practice or grants of restricted stock under the Parent Stock Plans, grant, confer, award, or modify the terms of any options, restricted stock, convertible securities, or other rights to acquire, or denominated in, any of Parent’s or any of the Parent Subsidiaries’ capital stock or other equity interestssecurities or take any action not set forth on Section 6.2(c)(vi) of the Parent Disclosure Letter; (xivii) sell, pledge, lease, assign, transfer dispose of or encumber, or effect a deed in lieu of foreclosure with respect to, any property or assets, except pledges and encumbrances on property or assets (A) in the ordinary course of business consistent with past practice or (B) that would not be materially adverse to the assets of Parent and the Parent Subsidiaries on a consolidated basis; (viii) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Parent Subsidiary), if such transaction would reasonably be expected to prevent ) except for Indebtedness incurred in connection with the acquisition of real property or materially delay the consummation of the Merger or the transactions as otherwise specifically contemplated by this Agreement; (xiiix) make any loans, advances or capital contributions to, or investments in, any other Person (including to any of its officers, directors, employees, Affiliates, agents or consultants), make any change in its existing borrowing or lending arrangements for or on behalf of such Persons, or enter into any “keep well” or similar agreement to maintain the financial condition of another entity, other than (A) by Parent or a wholly owned Parent Subsidiary to Parent or a wholly owned Parent Subsidiary, and (B) loans or advances required to be made under any of the Parent Leases or ground leases affecting the Parent Properties; (x) enter into, renew, modify, amendamend or terminate, renew or terminate waive, release, compromise or assign any rights or claims under, any Parent Affiliate TransactionMaterial Contract (or any Contract that, if such transaction would reasonably be expected to prevent or materially delay the consummation existing as of the Merger date hereof, would be a Parent Material Contract), other than (A) any termination or renewal in accordance with the terms of any existing Parent Material Contract that occur automatically without any action by Parent or any Parent Subsidiary, (B) the entry into any modification or amendment of, or waiver or consent under, any mortgage or related agreement to which Parent or any Parent Subsidiary is as required or necessitated by this Agreement or transactions contemplated by hereby, provided that any such modification, amendment, waiver or consent does not increase the principal amount thereunder or otherwise adversely affect Parent, any Parent Subsidiary or Parent or (C) as may be reasonably necessary to comply with the terms of this Agreement; provided that for purposes of this Section 6.2(c)(x), the dollar thresholds set forth in Sections 5.12(a)(ii), (v) and (x) shall be deemed to be $5,000,000 and the dollar threshold set forth in Section 5.12(a)(vii) shall be deemed to be $2,000,000. (xi) enter into, renew, modify, amend or terminate, or waive, release, compromise or assign any rights or claims under, any Parent Lease (or any lease for Real Property that, if existing as of the date hereof, would be a Parent Lease), except for (A) entering into any new lease or renewing any Parent Lease (1) in the ordinary course of business consistent with past practice or (2) in connection with the acquisition of real property, (B) terminating any Parent Lease as a result of a default by the counterparty to such Parent Lease (in accordance with the terms of such Parent Lease and subject to any applicable cure period therein), or (C) any such modification, amendment, waiver, release or compromise as would not have a Parent Material Adverse Effect; (xii) waive, release, assign any material rights or claims or make any payment, direct or indirect, of any liability of Parent or any Parent Subsidiary before the same comes due in accordance with its terms, other than in the ordinary course of business consistent with past practice; (xiii) settle or compromise (A) any legal action, suit or arbitration proceeding, in each case made or pending against Parent or any of the Parent Subsidiaries, including relating to Taxes, and (B) any legal action, suit or proceeding involving any present, former or purported holder or group of holders of the Parent Common Stock other than in accordance with Section 6.8, in each case, in an amount in excess of $1,000,000 individually; (xiv) (A) hire or terminate any officer, director or any employee of Parent or any Parent Subsidiary or promote or appoint any Person to a position of officer or director of Parent or any Parent Subsidiary, (B) increase in any manner the amount, rate or terms of compensation or benefits of any of its directors, officers or any employees, (C) pay or agree to pay any pension, retirement allowance or other compensation or benefit to any director, officer, employee or consultant of Parent or any Parent Subsidiary, whether past or present, (D) enter into, adopt, amend or terminate any employment, bonus, severance or retirement contract or other compensation or employee benefits arrangement, (E) accelerate the vesting or payment of any compensation or benefits under the Parent Stock Plans, (F) grant any awards under any Parent Stock Plan, bonus, incentive, performance or other compensation plan or arrangement, or (G) take any action to fund or in any other way secure the payment of compensation or benefits under the Parent Stock Plans, in each case, other than as required by Law; (xv) fail to maintain all financial books and records in all material respects in accordance with GAAP (or any interpretation thereof) or make any material change to its methods of accounting in effect as of the date hereof, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (xvi) enter into any new line of business; (xvii) fail to duly and timely file all material reports and other material documents required to be filed with NASDAQ or any Governmental Authority, subject to Section 8.1, extensions permitted by Law or applicable rules and regulations; (xviii) take any action that would could, or fail to take any action, the failure of which could, reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary to cease to be treated as any of (1) a partnership or disregarded entity for United States federal income tax purposes or (2) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be; (xix) adopt a plan of merger, complete or partial liquidation or resolutions providing for or authorizing such merger, liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization, except by a Parent Subsidiary in connection with any acquisitions permitted pursuant to Section 6.1(e) in a manner that would not reasonably be expected to be adverse to Parent or to prevent or materially delay impair the consummation ability of transactions contemplated Parent to consummate the Mergers; (xx) form any new funds or joint ventures; (xxi) incur any liability with respect to, amend, or enter into, any Parent Tax Protection Agreement, make, change or rescind any material election relating to Taxes, change a material method of Tax accounting, file or amend any material Tax Return, settle or compromise any material federal, state, local or foreign Tax liability, audit, claim or assessment, enter into any material closing agreement related to Taxes, or knowingly surrender any right to claim any material Tax refund except in each case upon providing contemporaneous written notice to the Company (A) if required by this AgreementLaw or (B) if necessary (x) to preserve Parent’s qualification as a REIT under the Code or (y) to qualify or preserve the status of any Parent Subsidiary as a disregarded entity or partnership for United States federal income tax purposes or as a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be; or (xivxxii) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (d) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit prohibit: (i) Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Parent Board, upon advice of counsel to Parent, is reasonably necessary for Parent to continue to avoid incurring entity level income or excise Taxes under the Code or to maintain its qualification as a REIT under the Code, including making dividend or other distribution payments to stockholders of Parent in accordance with this Agreement or otherwise. ; and (eii) Nothing contained the Parent Operating Partnership from taking any action, at any time or from time to time, as the Parent Operating Partnership determines to be necessary to: (A) be in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or compliance at all times with all of its obligations under any Parent Subsidiary’s operations prior to the Effective TimeTax Protection Agreement, and nothing contained in this Agreement shall give Parent, directly (B) avoid liability for any indemnification or indirectly, the right to control or direct the Company’s or other payment under any Company Subsidiary’s operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Tax Protection Agreement, complete control and supervision over its and its subsidiaries’ respective operations.

Conduct of Business by Parent and Merger Sub. (a) Each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, the Parent Parties shall, and shall cause each of the other Parent Entities to, (i) conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use its commercially reasonable best efforts to maintain its material assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of any Parent Entities’ control excepted), keep available the services of its present officers, maintain all Parent Insurance Policies and maintain the status of Parent as a REIT. The consent of the Company shall be deemed to have been given for purposes of this Section 6.2(a) and Section 6.2(c) if the Company does not object in writing within five (5) Business Days from the date on which the written request for such consent is provided by Parent to the Company. (b) The Parent Parties shall (i) use their commercially reasonable efforts to obtain the opinions of counsel referred to in Section 7.3(e) and Section 7.2(f), (ii) deliver to BakerProskauer Rose LLP and Wachtell, DonelsonLipton, Bearman, Xxxxxxxx Xxxxx & Xxxxxxxxx, PC and DLA Piper (US) Xxxx an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable BakerProskauer Rose LLP and Wachtell, DonelsonLipton, Bearman, Xxxxxxxx Xxxxx & Xxxxxxxxx, PC and DLA Piper (US) Xxxx to render the opinion described in Section 7.2(f) and Section 7.3(f), respectively, on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “Parent Tax Representation Letter”), and (iii) deliver to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC Proskauer Rose LLP an officer’s certificate, dated as of the effective date Date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent and the Parent Operating Partnership, containing representations of Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC Proskauer Rose LLP to render the opinion described in Section 7.3(e) on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date. (c) Without limiting the foregoing, each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, and except as may be required by the Starwood Transaction Documents, the Parent Parties shall not, and shall not cause or permit any of the other Parent Entities to, do any of the following: (i) other than amendments to the Parent Charter to increase the authorized number of shares or create or designate a series of preferred stock (including the Series D Preferred Stock, the Series E Preferred Stock and the Series F Preferred Stock), amend or propose to amend the Parent Charter or Parent Bylaws (or such equivalent organizational or governing documents of any Parent Subsidiary material to Parent and the Parent Subsidiaries, considered as a whole, if such amendment would be adverse to Parent or the Company); (ii) split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests of Parent, Merger Sub or any other Parent Subsidiary; (iii) declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or any Parent Subsidiary or other equity securities or ownership interests in Parent or any Parent Subsidiary, except for (A) the declaration and payment by Parent of regular dividends monthly dividends, for full monthly periods in accordance with past practice and not for any interim period prior to the Effective Time, at an annual rate not to exceed $0.6939 1.06 per share of Parent Common Stock, (B) the declaration and payment of dividends or other distributions to Parent by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such indirectly wholly owned Parent Subsidiary, and (C) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such Parent Subsidiary; provided, however, that, notwithstanding the restriction on dividends and other distributions in this Section 6.2(c)(iii), and subject to Section 6.146.18, Parent and any Parent Subsidiary shall be permitted to make distributions, including under Sections 857, 858 or 860 of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code or avoid or reduce the imposition of any entity level income or excise Tax under the Code; (iv) except pursuant to the Parent SRP, redeem, repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests of ParentParent or a Parent Subsidiary, other than the withholding of shares of Parent Common Stock to satisfy withholding Tax obligations with respect to awards granted pursuant to the Parent Stock Plans; (v) fail to maintain all financial books and records in all material respects in accordance with GAAP (or any interpretation thereof) or make any material change to its methods of accounting in effect as of December 31, 2013the date hereof, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (vi) take any action, or fail to take any action, which action or failure would reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary (1) to cease to be treated as any of (x) a partnership or disregarded entity for U.S. federal income Tax tax purposes or (y) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be, be or (2) that is not treated as a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code as the date hereof to be so treated; (vii) enter into any new line of business; (viii) fail to duly and timely file all material reports and other material documents required to be filed with the SEC and with any Governmental Authority; (ix) amend or modify the CapLease Merger Agreement in any material respect, or waive any material right of Parent or Safari Acquisition, LLC under the CapLease Merger Agreement, other than waivers of immaterial rights; (x) take any action, or fail to take any action, which action or failure would cause or would reasonably be expected (A) to result in the failure of any condition set forth in Section 7.1 or Section 7.3 of the CapLease Merger Agreement or (B) to prevent or materially impair the ability of Parent or Safari Acquisition, LLC to consummate the CapLease Merger in accordance with the terms of the CapLease Merger Agreement; provided, however, that nothing herein shall require Parent or Safari Acquisition, LLC to exercise its right to match any Superior Proposal (as defined in the CapLease Merger Agreement) under Section 6.5(e) of the CapLease Merger Agreement or otherwise respond to any such Superior Proposal; (xi) amend or modify the ARCT IV Merger Agreement in any material respect, or waive any right of Parent or Thunder Acquisition, LLC under the ARCT IV Merger Agreement, other than waivers of immaterial rights; (xii) take any action, or fail to take any action, which action or failure would cause or would reasonably be expected (A) to result in the failure of any condition set forth in Section 7.1 or Section 7.3 of the ARCT IV Merger Agreement or (B) to prevent or materially impair the ability of Parent or Thunder Acquisition, LLC to consummate the ARCT IV Merger in accordance with the terms of the ARCT IV Merger Agreement; provided, however, that nothing herein shall require Parent or Thunder Acquisition, LLC to exercise its right to match any Superior Proposal (as defined in the ARCT IV Merger Agreement) under Section 6.5(e) of the ARCT IV Merger Agreement or otherwise respond to any such Superior Proposal; (xiii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization of Parentreorganization; (xxiv) except for (A) transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) issuances of Parent Common Shares upon the exercise or settlement of take any Parent option and issuances of equity or equity-based awards under the Parent equity plans set forth in Section 6.2(c)(x) of the Parent Disclosure Letter, or (C) in a public or private offering for cash or property, or (D) as otherwise contemplated in this Section 6.2, issue, sell, pledge, dispose, encumber or grant any shares action that would require approval of Parent’s or any of the Parent Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Parent’s or any of the Parent Subsidiaries’ capital stock or other equity interestsstockholders under NASDAQ Rule 5635(a)(1); (xixv) incur, create, assume, refinance, replace or prepay any material Indebtedness for borrowed money money, or issue or amend the terms of any debt securities of Parent or any of the Parent Subsidiaries, or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly wholly-owned Parent Subsidiary), if to the extent such transaction would reasonably action results in Xxxxx’x downgrading Parent’s corporate credit rating below ‘Baa3’, other than, in each case, any Indebtedness pursuant to the Debt Financing or as otherwise may be expected required to prevent or materially delay the consummation of the Merger or consummate the transactions contemplated by this Agreement; (xii) enter into, modify, amend, renew or terminate any Parent Affiliate Transaction, if such transaction would reasonably be expected to prevent or materially delay the consummation of ARCT IV Merger Agreement and the CapLease Merger or the transactions contemplated by this Agreement; (xiii) subject to Section 8.1, take any action that would reasonably be expected to prevent or materially delay the consummation of transactions contemplated by this Agreement; or (xivxvi) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (d) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Parent Board, upon advice of counsel to Parent, is reasonably necessary for Parent to continue to avoid incurring entity level income or excise Taxes under the Code or to maintain its qualification as a REIT under the Code, including making dividend or other distribution payments to stockholders of Parent in accordance with this Agreement or otherwise. (e) Nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or any Parent Subsidiary’s operations prior to the Effective Time, and nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or any Company Subsidiary’s operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its subsidiaries’ respective operations.

Conduct of Business by Parent and Merger Sub. (a) Each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, the Parent Parties shall, and shall cause each of the other Parent Entities to, (i) conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use its commercially reasonable efforts to maintain its material assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of any Parent Entities’ control excepted), keep available the services of its present officers, maintain all Parent Insurance Policies and maintain the status of Parent as a REIT. (b) The Parent Parties shall (i) use their commercially reasonable efforts to obtain the opinions of counsel referred to in Section 7.3(e) and Section 7.2(f), (ii) deliver to BakerWachtell, DonelsonLipton, Bearman, Xxxxxxxx Rxxxx & Xxxxxxxxx, PC Kxxx and DLA Piper (US) Pxxxxxxxx Xxxx LLP an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable BakerWachtell, DonelsonLipton, Bearman, Xxxxxxxx Rxxxx & Xxxxxxxxx, PC Kxxx and DLA Piper (US) Pxxxxxxxx Xxxx LLP to render the opinion described in Section 7.2(f) and Section 7.3(f), respectively, on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “Parent Tax Representation Letter”), and (iii) deliver to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC Parent REIT Counsel (as defined below) an officer’s certificate, dated as of the effective date Date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent and the Parent Operating PartnershipParent, containing representations of Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC Parent REIT Counsel (as defined below) to render the opinion described in Section 7.3(e) on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date. (cb) Without limiting the foregoing, each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c6.2(b) of the Parent Disclosure Letter, and except as may be required by the Starwood Transaction Documents, the Parent Parties shall not, and shall not cause or permit any of the other Parent Entities to, do any of the following: (i) amend or propose to amend Amend the Parent Charter or Parent Bylaws (or such equivalent organizational or governing documents in a manner that would adversely affect the economic benefits of any Parent Subsidiary material the Mergers to Parent and the Parent Subsidiaries, considered as a whole, if such amendment would be adverse to Parent or the Company)holders of Company Common Stock; (ii) split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests of Parent, Merger Sub or any other Parent SubsidiaryOP Merger Sub; (iii) declareadopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, set aside consolidation, recapitalization or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or any Parent Subsidiary or other equity securities or ownership interests in Parent or any Parent Subsidiary, except for (A) the declaration and payment by Parent of regular dividends in accordance with past practice and not for any interim period prior to the Effective Time, at an annual rate not to exceed $0.6939 per share of Parent Common Stock, (B) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such Parent Subsidiary, and (C) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such Parent Subsidiary; provided, however, that, notwithstanding the restriction on dividends and other distributions in this Section 6.2(c)(iii), and subject to Section 6.14, Parent and any Parent Subsidiary shall be permitted to make distributions, including under Sections 857, 858 or 860 of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code or avoid or reduce the imposition of any entity level income or excise Tax under the Codebankruptcy reorganization; (iv) except pursuant to the Parent SRP, redeem, repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests of Parent; (v) fail to maintain all financial books and records in all material respects in accordance with GAAP (or any interpretation thereof) or make any material change to its methods of accounting in effect as of December 31, 2013, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (vi) take any action, or fail to take any action, which action or failure would reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary (1) to cease to be treated as any of (x) a partnership or disregarded entity for U.S. federal income Tax tax purposes or (y) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be, be or (2) that is not treated as a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code as of the date hereof to be so treated; (vii) enter into any new line of business; (viii) fail to duly and timely file all material reports and other material documents required to be filed with the SEC and with any Governmental Authority; (ix) adopt a plan of complete liquidation or resolutions providing for or authorizing such liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization of Parent; (x) except for (A) transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) issuances of Parent Common Shares upon the exercise or settlement of any Parent option and issuances of equity or equity-based awards under the Parent equity plans set forth in Section 6.2(c)(x) of the Parent Disclosure Letter, or (C) in a public or private offering for cash or property, or (D) as otherwise contemplated in this Section 6.2, issue, sell, pledge, dispose, encumber or grant any shares of Parent’s or any of the Parent Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Parent’s or any of the Parent Subsidiaries’ capital stock or other equity interests; (xi) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Parent Subsidiary), if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xii) enter into, modify, amend, renew or terminate any Parent Affiliate Transaction, if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xiii) subject to Section 8.1, take any action that would reasonably be expected to prevent or materially delay the consummation of transactions contemplated by this Agreement; or (xivv) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (dc) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Parent Board, upon advice of counsel to Parent, is reasonably necessary for Parent to continue to avoid incurring entity level income or excise Taxes under the Code or to maintain its qualification as a REIT under the Code, including making dividend or other distribution payments to stockholders of Parent in accordance with this Agreement or otherwise. (e) Nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or any Parent Subsidiary’s operations prior to the Effective Time, and nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or any Company Subsidiary’s operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its subsidiaries’ respective operations.

Conduct of Business by Parent and Merger Sub. (a) Each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, the Parent Parties shall, and shall cause each of the other Parent Entities Subsidiaries to, (i) conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use its commercially reasonable best efforts to maintain its material assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of any Parent’s or the Parent EntitiesSubsidiaries’ control excepted), preserve intact in all material respects its current business organization, goodwill, ongoing businesses and relationships with third parties, keep available the services of its present officersofficers and key employees, maintain all Parent Insurance Policies and maintain the status of Parent as a REIT. (b) The Parent Parties shall (i) use their its commercially reasonable best efforts to obtain the opinions of counsel referred to in Section 7.3(e) and Section 7.2(f7.3(f), (ii) deliver to Baker, Donelson, Bearman, Xxxxxxxx Lxxxxx & Xxxxxxxxx, PC and DLA Piper (US) Wxxxxxx LLP an officer’s certificatecertificate dated as of the Closing Date and signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable Lxxxxx & Wxxxxxx LLP to render the opinion described in Section 7.3(e), and (iii) deliver to Proskauer Rose LLP and Lxxxxx & Wxxxxxx LLP officer’s certificates, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent, in form and substance as set forth in Exhibit B, with such changes as are mutually agreeable to the Company and Parent (a “Parent Tax Representation Letter”), containing representations of Parent as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC and DLA Piper (US) Proskauer Rose LLP to render the an opinion described in Section 7.2(f) and Section 7.3(f), respectively, on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “Parent Tax Representation Letter”Date, as described in Section 7.3(f), respectively, and (iii) deliver Lxxxxx & Wxxxxxx LLP to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC render an officer’s certificate, dated as of opinion on the effective date of the Form S-4 S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date, respectively, and signed by an officer of Parent and the Parent Operating Partnership, containing representations of Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC to render the opinion described in Section 7.3(e) on the Closing Date7.2(f), respectively. (c) Without limiting the foregoing, each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be consented to agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, and except as may be required by the Starwood Transaction Documents, the Parent Parties shall not, and shall not cause or permit any of the other Parent Entities Subsidiaries to, do any of the following: (i) amend or propose to amend the Parent Charter or Parent Bylaws (or such equivalent organizational or governing documents of any Parent Subsidiary material to Parent and the Parent Subsidiaries, considered as a whole, if such amendment would be adverse to Parent or the Company); (ii) split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests of Parent, Merger Sub or any other Parent Subsidiary; (iii) declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or any Parent Subsidiary or other equity securities or ownership interests in Parent or any Parent Subsidiary, except for (A) for transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) in the declaration and payment by Parent ordinary course of regular dividends in accordance business consistent with past practice and not (C) for any interim period prior to the Effective Time, at an annual rate not to exceed $0.6939 per share issuances of Parent Common Stock, (B) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements Stock equal to up to 20% of the organizational documents of such outstanding Parent Subsidiary, and (C) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements Common Stock as of the organizational documents date hereof, issue, sell, pledge, dispose, encumber or grant any shares of such Parent’s or any of Parents Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Parent’s or any of Parent Subsidiary; Subsidiaries’ capital stock or other equity interests, provided, however, that, notwithstanding that Parent may issue shares of Parent Common Stock pursuant to the restriction on dividends and other distributions Parent Benefit Plans to the extent required under the terms of such Parent Benefit Plans as in this Section 6.2(c)(iii), and subject to Section 6.14, Parent and any Parent Subsidiary shall be permitted to make distributions, including under Sections 857, 858 or 860 effect as of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code or avoid or reduce the imposition date of any entity level income or excise Tax under the Codethis Agreement; (iv) except pursuant acquire or agree to the Parent SRPacquire (including by merger, redeem, repurchase consolidation or otherwise acquire, directly or indirectly, any shares acquisition of its capital stock or assets) any real property, corporation, partnership, limited liability company, other equity interests business organization or any division or material amount of Parentassets thereof, if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the other transactions contemplated by this Agreement; (v) take any action that could, or fail to maintain all financial books and records in all material respects in accordance with GAAP take any action, the failure of which could, reasonably be expected to cause (A) Parent to fail to qualify as a REIT, (B) any Parent Subsidiary to cease to be treated as any of (1) a partnership or any interpretation thereofdisregarded entity for federal income tax purposes or (2) a Qualified REIT Subsidiary, a Taxable REIT Subsidiary or a REIT under the applicable provisions of Section 856 of the Code, as the case may be or (C) Merger Sub to be treated as other than an entity disregarded from Parent for federal income tax purposes; (vi) make any material change to its methods of accounting in effect as of December 31, 2013the date hereof, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (vi) take any action, or fail to take any action, which action or failure would reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary (1) to cease to be treated as any of (x) a partnership or disregarded entity for U.S. federal income Tax purposes or (y) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be, or (2) that is not treated as a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code as the date hereof to be so treated; (vii) enter into any new line of business; (viii) fail to duly and timely file all material reports and other material documents required to be filed with the SEC and with any Governmental Authority; (ix) adopt a plan of complete liquidation or resolutions providing for or authorizing such partial liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization of Parent; (x) except for (A) transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) issuances of Parent Common Shares upon the exercise or settlement of any Parent option and issuances of equity or equity-based awards under the Parent equity plans set forth in Section 6.2(c)(x) of the Parent Disclosure Letter, or (C) in a public or private offering for cash or property, or (D) as otherwise contemplated in this Section 6.2, issue, sell, pledge, dispose, encumber or grant any shares of Parent’s or any of the Parent Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Parent’s or any of the Parent Subsidiaries’ capital stock or other equity interests; (xi) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Parent Subsidiary), if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xii) enter into, modify, amend, renew or terminate any Parent Affiliate Transaction, if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xiii) subject to Section 8.1, take any action that would reasonably be expected to prevent or materially delay the consummation of other transactions contemplated by this Agreement; or (xivviii) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (d) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Parent Board, upon advice of counsel to Parent, is reasonably necessary for Parent to continue to avoid incurring entity level income or excise Taxes under the Code or to maintain its qualification as a REIT under the CodeCode for any period or portion thereof ending on or prior to the Effective Time, including making dividend or other distribution payments to stockholders of Parent in accordance with this Agreement or otherwise. (e) Nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or any Parent Subsidiary’s operations prior to the Effective Time, and nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or any Company Subsidiary’s operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its subsidiaries’ respective operations.

Conduct of Business by Parent and Merger Sub. (a) Each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or Section 6.2(c) of the Parent Disclosure Letter, the Parent Parties shall, and shall cause each of the other Parent Entities Subsidiaries to, (i) conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use its commercially reasonable efforts to maintain its material assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of any Parent’s or the Parent EntitiesSubsidiaries’ control excepted), preserve intact in all material respects its current business organization, goodwill, ongoing businesses and relationships with third parties, keep available the services of its present officersofficers and key employees, maintain all Parent Insurance Policies Policies, and maintain the status of Parent as a REIT. (b) The Parent Parties shall (i) use their commercially reasonable efforts to obtain the opinions of counsel referred to in Section 7.3(e) and Section 7.2(f7.1(e), (ii) deliver to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC and DLA Piper (US) Proskauer Rose LLP an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of ParentParent and the Parent Operating Partnership with the knowledge necessary to make the representations contained therein, containing representations of Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC and DLA Piper (US) Proskauer Rose LLP to render the opinion described in Section 7.2(f7.3(e) and Section 7.3(f), respectively, on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “Parent Tax REIT Representation Letter”), and (iii) deliver to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC Proskauer Rose LLP an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent and with knowledge necessary to make the Parent Operating Partnershiprepresentations contained therein, containing representations of Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC Proskauer Rose LLP to render the opinion described in Section 7.3(e7.1(e) on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing DateDate (a “Parent Reorganization Representation Letter”). (c) Without limiting the foregoing, each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be consented to agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or Section 6.2(c) of the Parent Disclosure Letter, and except as may be required by the Starwood Transaction Documents, the Parent Parties shall not, and shall not cause or permit any of the other Parent Entities Subsidiaries to, do any of the following: (i) amend or propose to amend the Parent Charter or Parent Bylaws (or such equivalent organizational or governing documents of any Parent Subsidiary material to Parent and the Parent Subsidiaries, considered as a whole, if such amendment would be adverse to Parent or the Company)) or waive the ownership limit in the Parent Charter; (ii) split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests of Parent, Merger Sub or any other Parent Subsidiary, except as provided in the Parent OPP Agreement, the Parent Option Plan, and the Parent Restricted Stock Plan; (iii) declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or any Parent Subsidiary or other equity securities or ownership interests in Parent or any Parent Subsidiary, except for (A) the declaration and payment by Parent of regular dividends monthly dividends, for full monthly periods in accordance with past practice and not for any interim period prior to the Effective Time, at an annual rate not to exceed $0.6939 0.71 per share of Parent Common Stock, (B) the declaration and payment of dividends or other distributions to Parent by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such indirectly wholly owned Parent Subsidiary, and (C) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such Parent SubsidiarySubsidiary except as provided in the Parent OPP Agreement, the Parent Option Plan, and the Parent Restricted Stock Plan; provided, however, that, notwithstanding the restriction on dividends and other distributions in this Section 6.2(c)(iii), and subject to Section 6.14, Parent and any Parent Subsidiary shall be permitted to make distributions, including under Sections 857, 858 or 860 of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code or and avoid or reduce the imposition of any entity level income or excise Tax under the Code; (iv) except pursuant acquire or agree to the Parent SRPacquire (including by merger, redeem, repurchase consolidation or otherwise acquire, directly or indirectly, any shares acquisition of its capital stock or assets) any real property, corporation, partnership, limited liability company, other equity interests business organization or any division or material amount of Parentassets thereof, if such transaction would reasonably be expected to prevent or materially delay the consummation of the Mergers or the other transactions contemplated by this Agreement; (v) take any action that could, or fail to take any action, the failure of which could, reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary or Other Parent Subsidiary to cease to be treated as any of (1) a partnership or disregarded entity for U.S. federal income tax purposes or (2) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be; (vi) fail to maintain all financial books and records in all material respects in accordance with GAAP (or any interpretation thereof) or make any material change to its methods of accounting in effect as of December 31, 2013the date hereof, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (vi) take any action, or fail to take any action, which action or failure would reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary (1) to cease to be treated as any of (x) a partnership or disregarded entity for U.S. federal income Tax purposes or (y) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be, or (2) that is not treated as a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code as the date hereof to be so treated; (vii) enter into any new line of business; (viii) fail to duly and timely file all material reports and other material documents required to be filed with the SEC and with any Governmental Authority; (ix) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization of Parentreorganization; (xviii) except for (A) transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) issuances reduce the monthly dividend payable to holders of Parent Common Shares upon the exercise Stock below $0.059166667 per share or settlement of any Parent option and issuances of equity or equity-based awards under the Parent equity plans set forth in Section 6.2(c)(x) of the Parent Disclosure Letter, or (C) in make a public or private offering for cash or property, or (D) as otherwise contemplated in this Section 6.2, issue, sell, pledge, dispose, encumber or grant any shares announcement of Parent’s or any of a future intent to do the Parent Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Parent’s or any of the Parent Subsidiaries’ capital stock or other equity interests; (xi) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Parent Subsidiary), if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xii) enter into, modify, amend, renew or terminate any Parent Affiliate Transaction, if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xiii) subject to Section 8.1, take any action that would reasonably be expected to prevent or materially delay the consummation of transactions contemplated by this Agreementsame; or (xivix) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (d) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit (i) Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Parent Board, upon advice of counsel to Parent, is reasonably necessary for Parent to continue to avoid incurring entity level income or excise Taxes under the Code or to maintain its qualification as a REIT under the Code, including making dividend or other distribution payments to stockholders of Parent in accordance with this Agreement or otherwise. (e) Nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or any Parent Subsidiary’s operations prior to the Effective Time, and nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or any Company Subsidiary’s operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its subsidiaries’ respective operations.

Conduct of Business by Parent and Merger Sub. (a) Each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, the Parent Parties shall, and shall cause each of the other Parent Entities to, (i) conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use its commercially reasonable efforts to maintain its material assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of any Parent Entities’ control excepted), keep available the services of its present officers, maintain all Parent Insurance Policies and maintain the status of Parent as a REIT. (b) The Parent Parties shall (i) use their commercially reasonable efforts to obtain the opinions of counsel referred to in Section 7.3(e) and Section 7.2(f), (ii) deliver to BakerWachtell, DonelsonLipton, Bearman, Xxxxxxxx Xxxxx & Xxxxxxxxx, PC Xxxx and DLA Piper (US) Xxxxxxxxx Xxxx LLP an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable BakerWachtell, DonelsonLipton, Bearman, Xxxxxxxx Xxxxx & Xxxxxxxxx, PC Xxxx and DLA Piper (US) Xxxxxxxxx Xxxx LLP to render the opinion described in Section 7.2(f) and Section 7.3(f), respectively, on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “Parent Tax Representation Letter”), and (iii) deliver to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC Parent REIT Counsel (as defined below) an officer’s certificate, dated as of the effective date Date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent and the Parent Operating PartnershipParent, containing representations of Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC Parent REIT Counsel (as defined below) to render the opinion described in Section 7.3(e) on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date. (cb) Without limiting the foregoing, each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c6.2(b) of the Parent Disclosure Letter, and except as may be required by the Starwood Transaction Documents, the Parent Parties shall not, and shall not cause or permit any of the other Parent Entities to, do any of the following: (i) amend or propose to amend Amend the Parent Charter or Parent Bylaws (or such equivalent organizational or governing documents in a manner that would adversely affect the economic benefits of any Parent Subsidiary material the Mergers to Parent and the Parent Subsidiaries, considered as a whole, if such amendment would be adverse to Parent or the Company)holders of Company Common Stock; (ii) split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests of Parent, Merger Sub or any other Parent SubsidiaryOP Merger Sub; (iii) declareadopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, set aside consolidation, recapitalization or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or any Parent Subsidiary or other equity securities or ownership interests in Parent or any Parent Subsidiary, except for (A) the declaration and payment by Parent of regular dividends in accordance with past practice and not for any interim period prior to the Effective Time, at an annual rate not to exceed $0.6939 per share of Parent Common Stock, (B) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such Parent Subsidiary, and (C) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such Parent Subsidiary; provided, however, that, notwithstanding the restriction on dividends and other distributions in this Section 6.2(c)(iii), and subject to Section 6.14, Parent and any Parent Subsidiary shall be permitted to make distributions, including under Sections 857, 858 or 860 of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code or avoid or reduce the imposition of any entity level income or excise Tax under the Codebankruptcy reorganization; (iv) except pursuant to the Parent SRP, redeem, repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests of Parent; (v) fail to maintain all financial books and records in all material respects in accordance with GAAP (or any interpretation thereof) or make any material change to its methods of accounting in effect as of December 31, 2013, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (vi) take any action, or fail to take any action, which action or failure would reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary (1) to cease to be treated as any of (x) a partnership or disregarded entity for U.S. federal income Tax tax purposes or (y) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be, be or (2) that is not treated as a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code as of the date hereof to be so treated; (vii) enter into any new line of business; (viii) fail to duly and timely file all material reports and other material documents required to be filed with the SEC and with any Governmental Authority; (ix) adopt a plan of complete liquidation or resolutions providing for or authorizing such liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization of Parent; (x) except for (A) transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) issuances of Parent Common Shares upon the exercise or settlement of any Parent option and issuances of equity or equity-based awards under the Parent equity plans set forth in Section 6.2(c)(x) of the Parent Disclosure Letter, or (C) in a public or private offering for cash or property, or (D) as otherwise contemplated in this Section 6.2, issue, sell, pledge, dispose, encumber or grant any shares of Parent’s or any of the Parent Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Parent’s or any of the Parent Subsidiaries’ capital stock or other equity interests; (xi) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Parent Subsidiary), if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xii) enter into, modify, amend, renew or terminate any Parent Affiliate Transaction, if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xiii) subject to Section 8.1, take any action that would reasonably be expected to prevent or materially delay the consummation of transactions contemplated by this Agreement; or (xivv) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (dc) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Parent Board, upon advice of counsel to Parent, is reasonably necessary for Parent to continue to avoid incurring entity level income or excise Taxes under the Code or to maintain its qualification as a REIT under the Code, including making dividend or other distribution payments to stockholders of Parent in accordance with this Agreement or otherwise. (e) Nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or any Parent Subsidiary’s operations prior to the Effective Time, and nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or any Company Subsidiary’s operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its subsidiaries’ respective operations.

Conduct of Business by Parent and Merger Sub. (a) Each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section ‎‎Section 6.2(a) or 6.2(c‎‎6.2(c) of the Parent Disclosure Letter, the Parent Parties shall, and shall cause each of the other Parent Entities to, (i) conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use its commercially reasonable best efforts to maintain its material assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of any Parent Entities’ control excepted), keep available the services of its present officers, maintain all Parent Insurance Policies and maintain the status of Parent as a REIT. (b) The Parent Parties shall (i) use their commercially reasonable efforts to obtain the opinions of counsel referred to in Section ‎‎Section 7.3(e) and Section 7.2(f‎‎Section 7.3(f), (ii) deliver to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC and DLA Piper (US) Proskauer Rose LLP an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC and DLA Piper (US) Proskauer Rose LLP to render the opinion described in Section 7.2(f‎‎Section 7.3(e) and Section 7.3(f), respectively, on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “Parent Tax Representation Letter”)Date, and (iii) deliver to BakerWeil, Donelson, Bearman, Xxxxxxxx Gotshal & Xxxxxxxxx, PC an Mxxxxx LLP and Dxxxx Xxxxxx LLP officer’s certificatecertificates, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent, in form and substance as set forth in Exhibit B, with such changes as are mutually agreeable to the Company and Parent and the (a “Parent Operating PartnershipTax Representation Letter”), containing representations of Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable BakerWeil, Donelson, Bearman, Xxxxxxxx Gotshal & Xxxxxxxxx, PC Mxxxxx LLP to render an opinion on the opinion described in Section 7.3(e) effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date, as described in ‎‎Section 7.3(f), respectively, and Dxxxx Xxxxxx LLP to render an opinion on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date, as described in ‎‎Section 7.2(f), respectively. (c) Without limiting the foregoing, each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be consented to agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c‎‎6.2(c) of the Parent Disclosure Letter, and except as may be required by the Starwood Transaction Documents, the Parent Parties shall not, and shall not cause or permit any of the other Parent Entities to, do any of the following: (i) other than amendments to the Parent Charter to increase the authorized number of shares or create or designate a series of preferred stock, amend or propose to amend the Parent Charter or Parent Bylaws (or such equivalent organizational or governing documents of any Parent Subsidiary material to Parent and the Parent Subsidiaries, considered as a whole, if such amendment would be adverse to Parent or the Company); (ii) split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests of Parent, Merger Sub or any other Parent Subsidiary; (iii) declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or any Parent Subsidiary or other equity securities or ownership interests in Parent or any Parent Subsidiary, except for (A) the declaration and payment by Parent of regular dividends monthly dividends, for full monthly periods in accordance with past practice and not for any interim period prior to the Effective Time, at an annual rate not to exceed $0.6939 0.94 per share of Parent Common Stock, (B) the declaration and payment of dividends or other distributions to Parent by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such indirectly wholly owned Parent Subsidiary, and (C) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such Parent Subsidiary; provided, however, that, notwithstanding the restriction on dividends and other distributions in this Section 6.2(c)(iii), and subject to Section 6.14, Parent and any Parent Subsidiary shall be permitted to make distributions, including under Sections 857, 858 or 860 of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code or and avoid or reduce the imposition of any entity level income or excise Tax under the Code; (iv) except pursuant to the Parent SRP, redeem, repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests of ParentParent or a Parent Subsidiary, other than the withholding of shares of Parent Common Stock to satisfy withholding Tax obligations with respect to awards granted pursuant to the Parent Stock Plans; (v) fail to maintain all financial books and records in all material respects in accordance with GAAP (or any interpretation thereof) or make any material change to its methods of accounting in effect as of December 31, 2013the date hereof, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (vi) take any actionaction that could, or fail to take any action, the failure of which action or failure would could, reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary (1) to cease to be treated as any of (x1) a partnership or disregarded entity for U.S. federal income Tax tax purposes or (y2) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be, or (2) that is not treated as a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code as the date hereof to be so treated; (vii) enter into any new line of business; (viii) fail to duly and timely file all material reports and other material documents required to be filed with the SEC and with any Governmental Authority; (ix) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization of Parentreorganization; (xviii) except for take any action that (Aa) transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) issuances of Parent Common Shares upon the exercise or settlement of any Parent option and issuances of equity or equity-based awards under the Parent equity plans set forth in Section 6.2(c)(x) of the Parent Disclosure Letter, or (C) in a public or private offering for cash or property, or (D) as otherwise contemplated in this Section 6.2, issue, sell, pledge, dispose, encumber or grant any shares would require approval of Parent’s stockholders under NASDAQ Rule 5635(a)(1) or any (b) would reasonably anticipated to be the primary cause of the Parent Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of a material adverse effect on Parent’s or any stockholders (for purposes of the Parent Subsidiaries’ capital stock or other equity interests; this clause (xi) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Parent Subsidiaryb), if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or assuming that the transactions contemplated by this Agreement; (xii) enter intoAgreement have been consummated and, modifytherefore, amend, renew or terminate any Parent Affiliate Transaction, if such transaction would reasonably be expected to prevent or materially delay the consummation current stockholders of the Merger or the transactions contemplated by this Agreement; (xiii) subject to Section 8.1, take any action that would reasonably be expected to prevent or materially delay the consummation Company are stockholders of transactions contemplated by this AgreementParent); or (xivix) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (d) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit prohibit: (i) Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Parent Board, upon advice of counsel to Parent, is reasonably necessary for Parent to continue to avoid incurring entity level income or excise Taxes under the Code or to maintain its qualification as a REIT under the Code, including making dividend or other distribution payments to stockholders of Parent in accordance with this Agreement or otherwise. ; and (eii) Nothing contained the Parent Operating Partnership from taking any action, at any time or from time to time, as the Parent Operating Partnership determines to be necessary to: (A) be in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or compliance at all times with all of its obligations under any Parent Subsidiary’s operations prior to the Effective TimeTax Protection Agreement, and nothing contained in this Agreement shall give Parent, directly (B) avoid liability for any indemnification or indirectly, the right to control or direct the Company’s or other payment under any Company Subsidiary’s operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Tax Protection Agreement, complete control and supervision over its and its subsidiaries’ respective operations.

Conduct of Business by Parent and Merger Sub. (a) Each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, the Parent Parties shall, and shall cause each of the other Parent Entities to, (i) conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use its commercially reasonable best efforts to maintain its material assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of any Parent Entities’ control excepted), keep available the services of its present officers, maintain all Parent Insurance Policies and maintain the status of Parent as a REIT. The consent of the Company shall be deemed to have been given for purposes of this Section 6.2(a) and Section 6.2(c) if the Company does not object in writing within five (5) Business Days from the date on which the written request for such consent is provided by Parent to the Company. (b) The Parent Parties shall (i) use their commercially reasonable efforts to obtain the opinions of counsel referred to in Section 7.3(e) and Section 7.2(f), (ii) deliver to BakerProskauer Rose LLP and Wachtell, DonelsonLipton, Bearman, Xxxxxxxx Rxxxx & Xxxxxxxxx, PC and DLA Piper (US) Kxxx an officer’s certificate, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable BakerProskauer Rose LLP and Wachtell, DonelsonLipton, Bearman, Xxxxxxxx Rxxxx & Xxxxxxxxx, PC and DLA Piper (US) Kxxx to render the opinion described in Section 7.2(f) and Section 7.3(f), respectively, on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “Parent Tax Representation Letter”), and (iii) deliver to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC Proskauer Rose LLP an officer’s certificate, dated as of the effective date Date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent and the Parent Operating Partnership, containing representations of Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC Proskauer Rose LLP to render the opinion described in Section 7.3(e) on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date. (c) Without limiting the foregoing, each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be consented to in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, and except as may be required by the Starwood Transaction Documents, the Parent Parties shall not, and shall not cause or permit any of the other Parent Entities to, do any of the following: (i) other than amendments to the Parent Charter to increase the authorized number of shares or create or designate a series of preferred stock (including the Series D Preferred Stock, the Series E Preferred Stock and the Series F Preferred Stock), amend or propose to amend the Parent Charter or Parent Bylaws (or such equivalent organizational or governing documents of any Parent Subsidiary material to Parent and the Parent Subsidiaries, considered as a whole, if such amendment would be adverse to Parent or the Company); (ii) split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests of Parent, Merger Sub or any other Parent Subsidiary; (iii) declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or any Parent Subsidiary or other equity securities or ownership interests in Parent or any Parent Subsidiary, except for (A) the declaration and payment by Parent of regular dividends monthly dividends, for full monthly periods in accordance with past practice and not for any interim period prior to the Effective Time, at an annual rate not to exceed $0.6939 1.06 per share of Parent Common Stock, (B) the declaration and payment of dividends or other distributions to Parent by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such indirectly wholly owned Parent Subsidiary, and (C) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements of the organizational documents of such Parent Subsidiary; provided, however, that, notwithstanding the restriction on dividends and other distributions in this Section 6.2(c)(iii), and subject to Section 6.146.18, Parent and any Parent Subsidiary shall be permitted to make distributions, including under Sections 857, 858 or 860 of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code or avoid or reduce the imposition of any entity level income or excise Tax under the Code; (iv) except pursuant to the Parent SRP, redeem, repurchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests of ParentParent or a Parent Subsidiary, other than the withholding of shares of Parent Common Stock to satisfy withholding Tax obligations with respect to awards granted pursuant to the Parent Stock Plans; (v) fail to maintain all financial books and records in all material respects in accordance with GAAP (or any interpretation thereof) or make any material change to its methods of accounting in effect as of December 31, 2013the date hereof, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (vi) take any action, or fail to take any action, which action or failure would reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary (1) to cease to be treated as any of (x) a partnership or disregarded entity for U.S. federal income Tax tax purposes or (y) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be, be or (2) that is not treated as a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code as the date hereof to be so treated; (vii) enter into any new line of business; (viii) fail to duly and timely file all material reports and other material documents required to be filed with the SEC and with any Governmental Authority; (ix) amend or modify the CapLease Merger Agreement in any material respect, or waive any material right of Parent or Safari Acquisition, LLC under the CapLease Merger Agreement, other than waivers of immaterial rights; (x) take any action, or fail to take any action, which action or failure would cause or would reasonably be expected (A) to result in the failure of any condition set forth in Section 7.1 or Section 7.3 of the CapLease Merger Agreement or (B) to prevent or materially impair the ability of Parent or Safari Acquisition, LLC to consummate the CapLease Merger in accordance with the terms of the CapLease Merger Agreement; provided, however, that nothing herein shall require Parent or Safari Acquisition, LLC to exercise its right to match any Superior Proposal (as defined in the CapLease Merger Agreement) under Section 6.5(e) of the CapLease Merger Agreement or otherwise respond to any such Superior Proposal; (xi) amend or modify the ARCT IV Merger Agreement in any material respect, or waive any right of Parent or Thunder Acquisition, LLC under the ARCT IV Merger Agreement, other than waivers of immaterial rights; (xii) take any action, or fail to take any action, which action or failure would cause or would reasonably be expected (A) to result in the failure of any condition set forth in Section 7.1 or Section 7.3 of the ARCT IV Merger Agreement or (B) to prevent or materially impair the ability of Parent or Thunder Acquisition, LLC to consummate the ARCT IV Merger in accordance with the terms of the ARCT IV Merger Agreement; provided, however, that nothing herein shall require Parent or Thunder Acquisition, LLC to exercise its right to match any Superior Proposal (as defined in the ARCT IV Merger Agreement) under Section 6.5(e) of the ARCT IV Merger Agreement or otherwise respond to any such Superior Proposal; (xiii) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization of Parentreorganization; (xxiv) except for (A) transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) issuances of Parent Common Shares upon the exercise or settlement of take any Parent option and issuances of equity or equity-based awards under the Parent equity plans set forth in Section 6.2(c)(x) of the Parent Disclosure Letter, or (C) in a public or private offering for cash or property, or (D) as otherwise contemplated in this Section 6.2, issue, sell, pledge, dispose, encumber or grant any shares action that would require approval of Parent’s or any of the Parent Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Parent’s or any of the Parent Subsidiaries’ capital stock or other equity interestsstockholders under NASDAQ Rule 5635(a)(1); (xixv) incur, create, assume, refinance, replace or prepay any material Indebtedness for borrowed money money, or issue or amend the terms of any debt securities of Parent or any of the Parent Subsidiaries, or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly wholly-owned Parent Subsidiary), if to the extent such transaction would reasonably action results in Mxxxx’x downgrading Parent’s corporate credit rating below ‘Baa3’, other than, in each case, any Indebtedness pursuant to the Debt Financing or as otherwise may be expected required to prevent or materially delay the consummation of the Merger or consummate the transactions contemplated by this Agreement; (xii) enter into, modify, amend, renew or terminate any Parent Affiliate Transaction, if such transaction would reasonably be expected to prevent or materially delay the consummation of ARCT IV Merger Agreement and the CapLease Merger or the transactions contemplated by this Agreement; (xiii) subject to Section 8.1, take any action that would reasonably be expected to prevent or materially delay the consummation of transactions contemplated by this Agreement; or (xivxvi) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (d) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Parent Board, upon advice of counsel to Parent, is reasonably necessary for Parent to continue to avoid incurring entity level income or excise Taxes under the Code or to maintain its qualification as a REIT under the Code, including making dividend or other distribution payments to stockholders of Parent in accordance with this Agreement or otherwise. (e) Nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or any Parent Subsidiary’s operations prior to the Effective Time, and nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or any Company Subsidiary’s operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its subsidiaries’ respective operations.

Conduct of Business by Parent and Merger Sub. (a) Each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, the Parent Parties shall, and shall cause each of the other Parent Entities Subsidiaries to, (i) conduct its business in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use its commercially reasonable best efforts to maintain its material assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of any Parent’s or the Parent EntitiesSubsidiaries’ control excepted), preserve intact in all material respects its current business organization, goodwill, ongoing businesses and relationships with third parties, keep available the services of its present officersofficers and key employees, maintain all Parent Insurance Policies and maintain the status of Parent as a REIT. (b) The Parent Parties shall (i) use their its commercially reasonable best efforts to obtain the opinions of counsel referred to in Section 7.3(e) and Section 7.2(f7.3(f), (ii) deliver to Baker, Donelson, Bearman, Xxxxxxxx Xxxxxx & Xxxxxxxxx, PC and DLA Piper (US) Xxxxxxx LLP an officer’s certificatecertificate dated as of the Closing Date and signed by an officer of Parent, containing representations of Parent as shall be reasonably necessary or appropriate to enable Xxxxxx & Xxxxxxx LLP to render the opinion described in Section 7.3(e), and (iii) deliver to Proskauer Rose LLP and Xxxxxx & Xxxxxxx LLP officer’s certificates, dated as of the effective date of the Form S-4 and the Closing Date, respectively, and signed by an officer of Parent, in form and substance as set forth in Exhibit B, with such changes as are mutually agreeable to the Company and Parent (a “Parent Tax Representation Letter”), containing representations of Parent as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC and DLA Piper (US) Proskauer Rose LLP to render the an opinion described in Section 7.2(f) and Section 7.3(f), respectively, on the effective date of the Form S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date (a “Parent Tax Representation Letter”Date, as described in Section 7.3(f), respectively, and (iii) deliver Xxxxxx & Xxxxxxx LLP to Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC render an officer’s certificate, dated as of opinion on the effective date of the Form S-4 S-4, satisfying the requirements of Item 601 of Regulation S-K under the Securities Act, and on the Closing Date, respectively, and signed by an officer of Parent and the Parent Operating Partnership, containing representations of Parent and the Parent Operating Partnership as shall be reasonably necessary or appropriate to enable Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC to render the opinion described in Section 7.3(e) on the Closing Date7.2(f), respectively. (c) Without limiting the foregoing, each Parent Party covenants and agrees that, during the Interim Period, except to the extent required by Law, as may be consented to agreed in writing by the Company (which consent shall not be unreasonably withheld, delayed or conditioned), as may be expressly required or permitted pursuant to this Agreement, or as set forth in Section 6.2(a) or 6.2(c) of the Parent Disclosure Letter, and except as may be required by the Starwood Transaction Documents, the Parent Parties shall not, and shall not cause or permit any of the other Parent Entities Subsidiaries to, do any of the following: (i) amend or propose to amend the Parent Charter or Parent Bylaws (or such equivalent organizational or governing documents of any Parent Subsidiary material to Parent and the Parent Subsidiaries, considered as a whole, if such amendment would be adverse to Parent or the Company); (ii) split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests of Parent, Merger Sub or any other Parent Subsidiary; (iii) declare, set aside or pay any dividend on or make any other distributions (whether in cash, stock, property or otherwise) with respect to shares of capital stock of Parent or any Parent Subsidiary or other equity securities or ownership interests in Parent or any Parent Subsidiary, except for (A) for transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) in the declaration and payment by Parent ordinary course of regular dividends in accordance business consistent with past practice and not (C) for any interim period prior to the Effective Time, at an annual rate not to exceed $0.6939 per share issuances of Parent Common Stock, (B) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements Stock equal to up to 20% of the organizational documents of such outstanding Parent Subsidiary, and (C) distributions by any Parent Subsidiary that is not wholly owned, directly or indirectly, by Parent, in accordance with the requirements Common Stock as of the organizational documents date hereof, issue, sell, pledge, dispose, encumber or grant any shares of such Parent’s or any of Parents Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Parent’s or any of Parent Subsidiary; Subsidiaries’ capital stock or other equity interests, provided, however, that, notwithstanding that Parent may issue shares of Parent Common Stock pursuant to the restriction on dividends and other distributions Parent Benefit Plans to the extent required under the terms of such Parent Benefit Plans as in this Section 6.2(c)(iii), and subject to Section 6.14, Parent and any Parent Subsidiary shall be permitted to make distributions, including under Sections 857, 858 or 860 effect as of the Code, reasonably necessary for Parent to maintain its status as a REIT under the Code or avoid or reduce the imposition date of any entity level income or excise Tax under the Codethis Agreement; (iv) except pursuant acquire or agree to the Parent SRPacquire (including by merger, redeem, repurchase consolidation or otherwise acquire, directly or indirectly, any shares acquisition of its capital stock or assets) any real property, corporation, partnership, limited liability company, other equity interests business organization or any division or material amount of Parentassets thereof, if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the other transactions contemplated by this Agreement; (v) take any action that could, or fail to maintain all financial books and records in all material respects in accordance with GAAP take any action, the failure of which could, reasonably be expected to cause (A) Parent to fail to qualify as a REIT, (B) any Parent Subsidiary to cease to be treated as any of (1) a partnership or any interpretation thereofdisregarded entity for federal income tax purposes or (2) a Qualified REIT Subsidiary, a Taxable REIT Subsidiary or a REIT under the applicable provisions of Section 856 of the Code, as the case may be or (C) Merger Sub to be treated as other than an entity disregarded from Parent for federal income tax purposes; (vi) make any material change to its methods of accounting in effect as of December 31, 2013the date hereof, except as required by a change in GAAP (or any interpretation thereof) or in applicable Law, or make any change, other than in the ordinary course of business consistent with past practice, with respect to accounting policies, unless required by GAAP or the SEC; (vi) take any action, or fail to take any action, which action or failure would reasonably be expected to cause (A) Parent to fail to qualify as a REIT or (B) any Parent Subsidiary (1) to cease to be treated as any of (x) a partnership or disregarded entity for U.S. federal income Tax purposes or (y) a Qualified REIT Subsidiary or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be, or (2) that is not treated as a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code as the date hereof to be so treated; (vii) enter into any new line of business; (viii) fail to duly and timely file all material reports and other material documents required to be filed with the SEC and with any Governmental Authority; (ix) adopt a plan of complete liquidation or resolutions providing for or authorizing such partial liquidation or a dissolution, consolidation, recapitalization or bankruptcy reorganization of Parent; (x) except for (A) transactions among Parent and one or more wholly owned Parent Subsidiaries or among one or more wholly owned Parent Subsidiaries, (B) issuances of Parent Common Shares upon the exercise or settlement of any Parent option and issuances of equity or equity-based awards under the Parent equity plans set forth in Section 6.2(c)(x) of the Parent Disclosure Letter, or (C) in a public or private offering for cash or property, or (D) as otherwise contemplated in this Section 6.2, issue, sell, pledge, dispose, encumber or grant any shares of Parent’s or any of the Parent Subsidiaries’ capital stock, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of Parent’s or any of the Parent Subsidiaries’ capital stock or other equity interests; (xi) incur, create, assume, refinance, replace or prepay any Indebtedness for borrowed money or issue or amend the terms of any debt securities or assume, guarantee or endorse, or otherwise become responsible (whether directly, contingently or otherwise) for the Indebtedness of any other Person (other than a wholly owned Parent Subsidiary), if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xii) enter into, modify, amend, renew or terminate any Parent Affiliate Transaction, if such transaction would reasonably be expected to prevent or materially delay the consummation of the Merger or the transactions contemplated by this Agreement; (xiii) subject to Section 8.1, take any action that would reasonably be expected to prevent or materially delay the consummation of other transactions contemplated by this Agreement; or (xivviii) authorize, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (d) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prohibit Parent from taking any action, at any time or from time to time, that in the reasonable judgment of the Parent Board, upon advice of counsel to Parent, is reasonably necessary for Parent to continue to avoid incurring entity level income or excise Taxes under the Code or to maintain its qualification as a REIT under the CodeCode for any period or portion thereof ending on or prior to the Effective Time, including making dividend or other distribution payments to stockholders of Parent in accordance with this Agreement or otherwise. (e) Nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or any Parent Subsidiary’s operations prior to the Effective Time, and nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or any Company Subsidiary’s operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its subsidiaries’ respective operations.