Common use of Conduct of Business of Seller Clause in Contracts

Conduct of Business of Seller. During the period from the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”), Seller shall, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Buyer, conduct its business in the ordinary course of business consistent with past practice, and, to the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its current officers and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Closing Date, Seller shall not, without the prior written consent of Buyer: (a) amend or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoing.

Conduct of Business of Seller. During the period from the date of this Agreement until the earlier to occur of the Pre-Closing or the termination of this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”), Seller shall, and shall cause the Company Subsidiary to, use commercially reasonable efforts, except as expressly contemplated by this Agreement otherwise required, authorized or as required by applicable Law restricted pursuant to the Bankruptcy Code, an Order of the Bankruptcy Court or with the prior written consent of BuyerDIP Financing Agreement, conduct its business to operate the Business in the ordinary course Ordinary Course of business consistent with past practice, and, to the extent consistent therewithBusiness (among other things, Seller will not, and will cause the Company Subsidiary not to, incur unreasonable liabilities, including inappropriate factoring of accounts receivable, and shall use its commercially reasonable reasonably efforts to preserve substantially intact its business organization, keep available the services pay all of its current officers respective post-petition obligations in the Ordinary Course of Business and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with itmaintain a normalized level of working capital). Without limiting the generality of the foregoing, between and except (x) as otherwise expressly provided in or contemplated by this Agreement, or (y) required, authorized or restricted pursuant to the date Bankruptcy Code, an Order of this Agreement and the Bankruptcy Court or the DIP Financing Agreement, during the Pre-Closing DatePeriod, Seller shall may not, without the prior written consent of Buyer: (a) amend or propose to amend its Charter Documents; (b) acquirePurchaser, by merger, consolidation, acquisition of stock or assetstake, or otherwisecause Company Subsidiary to take, any business or Person or division thereof or make any loans, advances or capital contributions of the following actions with respect to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets: (a) except as required pursuant to a Seller Plan in effect on the date hereof or otherwise required by applicable Law, except for (i) enter into, adopt, amend (including acceleration of vesting), modify or terminate any indebtedness Seller Plan, other than routine amendments to health and welfare plans (other than severance plans) that is an Excluded Liability; provideddo not materially increase benefits or result in a material increase in administrative costs, however(ii) grant any increase in wages, no such indebtednesssalary, guaranty bonus or other obligation shall be secured by any interest compensation, remuneration or benefits of any kind Employee, (iii) terminate the employment of any Employee with a title of Vice President or above other than for cause or (iv) hire any person that would be an Employee; (b) except as set forth in Schedule 8.1(b), remove or permit to be removed from any Combined Leased Real Property any Purchased Asset (other than in connection with the sale of Inventory in the Ordinary Course of Business and the sale of fixtures, equipment and related assets in connection with the closing of facilities in an amount not to exceed $100,000); (c) sell, transfer, lease, sublease, sub-sublease or license to any third party, or abandon or otherwise dispose of, mortgage, hypothecate, pledge or otherwise encumber, any Purchased AssetsAsset, any of the Combined Leased Real Property or any of the Company Subsidiary Assets (other than sales of Inventory in the Ordinary Course of Business); (d) enter into, amend, terminate or renew (other than terminations in connection with (i) an expiration or (ii) a renewal that becomes automatically effective unless a party thereto provides prior notice of an intention not to renew) any Contract in a manner adverse to Seller or the Company Subsidiary which results in an obligation of Seller or the Company Subsidiary in excess of $125,000, or materially modify or amend any Assigned Contract or modify, waive, release or assign any material rights or claims thereunder, in each case whether in connection with any extension, renewal or replacement of such Assigned Contract, or otherwise, or take any action that would reasonably be expected to cause any such Assigned Contract not to be in effect and binding upon the parties thereto as of the Closing Date; (e) enter into any Material Contractjoint venture agreement that involves a sharing of profits, cash flows, expenses or losses with another Person related to or affecting the Business or Purchased Assets or the Company Subsidiary Assets; (f) amendchange the manner in which it extends, waivewarrants, modify in any material respect discounts or in a manner adverse credits to customers of the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rightsBusiness; (g) authorize amend or make any commitment with respect to any single capital expenditure for modify the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a wholeDIP Financing Agreement; (h) except as may be required by applicable Law make any capital expenditures or under incur any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any expenses items in excess of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 100,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into mortgage, pledge or subject to any Contract with Encumbrance, other than Permitted Encumbrances, any Person contemplated by Section 4.27 in connection with or affecting of the Business or the Purchased AssetsCombined Leased Real Property; (j) make incur any material change in any method of financial accounting principles or practices, in each case Indebtedness for borrowed money except for any such change required by a change in GAAP or applicable Lawwith respect to the DIP Financing Agreement; (k) institutefail to use commercially reasonable efforts to renew and maintain the validity of Seller’s or the Company Subsidiary’s rights in, settleto or under any Intellectual Property; (l) transfer, dispose of, permit to lapse (except in accordance with the terms thereof) or grant any right or license under, or compromise enter into any Action involving settlement regarding the breach or infringement of, any right in, to or under any Intellectual Property, or modify any existing right with respect thereto or enter into any licensing or similar agreements or arrangements, in each case not in the Ordinary Course of Business; (m) fail to use commercially reasonable efforts to renew and maintain all material Permits of Seller or the Company Subsidiary used in the operation of the Business, the Purchased Assets or the Company Subsidiary Assets; (n) make any efforts not in the Ordinary Course of Business to (i) collect any outstanding Accounts Receivable or intercompany obligation, liability or Indebtedness, (ii) give any discounts or concessions for early payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregatesuch accounts receivable or intercompany obligation, liability or Indebtedness, other than discounts consistent with past practice and given by the Business in the Ordinary Course of Business or (iii) make any sales of, or convey any interest in, any accounts receivable or intercompany obligation, liability or Indebtedness to any third party; (o) other than transactions pursuant to agreements or arrangements in effect on the Petition Date as set forth on Schedule 8.1(o) and other than payment of compensation or provision of benefits in the Ordinary Course of Business, engage in any transaction with any Affiliate, subsidiary, shareholder, officer or director of Seller, incur or assume any long term or short term debt with or on behalf of any such Person or guarantee, endorse or otherwise be liable or responsible (whether directly, indirectly, contingently or otherwise) for the obligations of any such Person; (p) fail to maintain any insurance policy that is a Purchased Asset and is in effect on the date hereof or amend any such policy (other than in the Ordinary Course of Business); (q) file any Tax Return (other than consistent with past practice and applicable Law) or make, change or rescind any material Tax election or file any amended Tax Return or materially change its fiscal year or financial or Tax accounting methods, policies or practices or settle any material Tax Liability, request, enter into or obtain any material Tax ruling with or from a Governmental Body or enter into any material agreement with respect to Taxes, in each case if such action could result in any material Liability to, or have any material adverse effect on, the Purchased Assets, the Company Subsidiary Assets or the Business, or subject Purchaser or any of its Affiliates to any material Tax liability; (r) (i) recognize any Action brought against Buyer arising out of a breach material new labor organization, union, employee association, trade union, works council or alleged breach of this Agreement by Buyer and other similar employee representative, or (ii) the settlement of claimsnegotiate, liabilities enter into, amend, modify or obligations fully reserved against on the Balance Sheet; provided that Seller shall not terminate any material Collective Bargaining Agreement; (s) settle or agree to settle any Action which settlement involves a conduct remedy pending or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) paythreatened litigation, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating except to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) extent that such settlement is (i) settle or compromise any material Tax pursuant to an insured claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make less than $50,000 in value or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right relates to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Sellerpre-petition unsecured claims; (nt) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract except with respect to the DIP Financing Agreement, sell, pledge, assign or transfer to any joint ventureother Person, strategic partnership or alliancegrant, create, incur, assume or suffer to exist any lien on any Purchased Assets or the Company Subsidiary Assets, whether now existing or hereafter transferred hereunder, or any interest, therein; (ou) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions as contemplated by this Agreement, consolidate with or merge into any other Person or convey or transfer a substantial portion of the assets of Seller or the Company Subsidiary to any Person, or sell or assign with or without recourse any Purchased Asset or Company Subsidiary Asset or any interest therein; (pv) abandon, allow to lapse, sell, assign, transfer, grant acquire any security ownership interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IPin real property; (qw) accelerate commence a bankruptcy filing or equivalent proceedings under the collection bankruptcy Laws of India with respect to the Company Subsidiary, or discount take any Accounts Receivable, delay the payment of Liabilities actions that would become Assumed Liabilities adversely affect Purchaser’s ability to acquire the Company Subsidiary Stock or defer expenses, reduce Inventories or otherwise increase cash on hand any Company Subsidiary Asset in connection accordance with the Business, except in the ordinary course of business consistent with past practice;terms hereof; and (rx) terminate agree, whether in writing or modify in any material respectotherwise, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoingforegoing or agree to do anything that would cause Seller’s representations and warranties in Article IV hereof to be untrue.

Conduct of Business of Seller. During the period from the date of this Agreement Effective Date and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with and the terms Closing, subject to the limitations set forth in ARTICLE VIII (herein, upon their execution and delivery of the “Interim Period”)Joinder, Seller shall, and Seller Parent shall cause Seller to, in each case except to the extent that Purchaser shall otherwise consent in writing, which consent may not be unreasonably withheld, conditioned or delayed, carry on the Business in the Ordinary Course of Business in all material respects, maintain the Property in a state of repair consistent with the Ordinary Course of Business in all material respects, comply with all applicable Legal Requirements and Seller Permits in all material respects, and pay its Liabilities and Taxes with respect to the Property when due (subject to good faith disputes over such Liabilities or Taxes) and use all commercially reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and preserve its relationships with customers, employees, suppliers, distributors, and others having business dealings with it in all material respects. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement or as required by applicable Law or with disclosed in Schedule 7.1 hereof, during the prior written consent of Buyer, conduct its business in period from the ordinary course of business consistent with past practice, and, to Effective Date and continuing until the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its current officers and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality earlier of the foregoing, between the date termination of this Agreement and the Closing DateClosing, without the written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Seller agrees that it shall not, without the prior written consent of Buyerand Seller Parent agrees that it shall cause Seller not to: (ai) amend or propose to amend its Charter Documents; (b) acquiresell, by mergerpledge, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transferlease, license, selldispose of, lease or otherwise dispose of (whether by way of mergerabandon, consolidation, sale of stock or assets, or otherwise) or pledgegrant, encumber or otherwise subject to any authorize or permit the sale, pledge, disposition, grant or Encumbrance (other than a Permitted Encumbrance)Encumbrances) of all or any portion of, or any Purchased Assets; provided that direct or indirect interest in, the foregoing shall not prohibit Seller from transferringProperty, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case except in the ordinary course Ordinary Course of business consistent with past practiceBusiness and except as set forth on Schedule 7.1; (dii) incur any indebtedness for borrowed money cause or issue any debt securities or assume, guarantee or endorsepermit the Property to be subjected to, or otherwise become responsible forpermit to exist on the Property, any Lien or Encumbrance, other than Permitted Encumbrances; (iii) fail to maintain the obligations existing insurance coverage of any Personall types relating to the Property (provided, or make any loans or advanceshowever, in each case the event that any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies in excess the Ordinary Course of $50,000 and affecting Business); (iv) fail to make capital expenditures at the Property required under any Gaming Law or by any Gaming Authority; (v) close or shut down the Business or the Purchased AssetsProperty, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty closures or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures shutdowns which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: are (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP action, order, writ, injunction, judgment or applicable Law; (k) institute, settle, decree or compromise any Action involving the payment of monetary damages otherwise required by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents)Legal Requirements, (ii) make due to acts of God or change any material Tax election, change any annual Tax accounting period, other force majeure events; or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver the Ordinary Course of the limitation period applicable to any material Tax claim or assessment relating to SellerBusiness; (nvi) enter into seek any agreement, agreement in principle, letter of intent, memorandum of understanding zoning or similar Contract land use changes with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policyProperty; or (svii) announce an intentionagree, enter into any formal whether or informal agreementnot in writing, or otherwise make a commitment to do any of the foregoing, or to authorize or announce an intention to do any of the foregoing. Prior to the Seller Parties’ execution and delivery of the Joinder, Penn shall use its reasonable best efforts, including enforcing Seller’s and Seller Parent’s obligations under the Merger Agreement to the extent necessary, to cause Seller and Seller Parent to comply with its obligations in this Section 7.1.

Conduct of Business of Seller. (a) During the period from the date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with pursuant to Section 8.1 or the terms Closing, subject to the limitations set forth in ARTICLE VIII (the “Interim Period”)below, Seller shall, and shall cause its Affiliates with respect to the Property to (except as expressly otherwise contemplated by this Agreement or as Agreement, required by applicable Law Law, or with to the prior written extent that Buyer shall otherwise consent of Buyerin writing, conduct its which consent shall not be unreasonably withheld, delayed or conditioned), carry on the business at the Property in the ordinary course Ordinary Course of business Business, use commercially reasonable efforts consistent with past practice, and, practices and policies of Seller and its Affiliates to preserve intact Seller’s current business organization with respect to the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organizationProperty, keep available the services of its Seller’s current officers and employees, key employees with respect to the Property and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, suppliers and distributors (it being understood that the announcement of this Agreement may lead some of the employees of Seller to explore other Persons having business relationships with itindustry opportunities) and maintain all Seller Permits and perform all of its obligations under all Assumed Contracts as they arise in the Ordinary Course of Business. Without limiting the generality of the foregoing, between except as contemplated by this Agreement, required by Law or disclosed on Section 6.1 of the date Seller Disclosure Letter, during the period described in the first sentence of this Agreement and the Closing Dateparagraph, Seller shall not, without the prior written Buyer’s consent of Buyer: (a) amend or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing which consent shall not prohibit Seller from transferringbe unreasonably withheld, selling, leasing delayed or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement;conditioned): (i) enter into Make any Contract with any Person contemplated by Section 4.27 material change in connection with or affecting management personnel of the Business or the Purchased AssetsProperty; (jii) Except as required by Law or GAAP or as recommended by independent auditors or consistent with changes by Seller Parent with respect to its other businesses, make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past tax practice; (miii) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included Except in the Seller SEC Documents), (ii) make or change any material Tax electionOrdinary Course of Business, change the hold percentages of any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or slot machines; (iv) enter into Except in the Ordinary Course of Business, add or remove any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Sellergaming tables; (nv) enter into any agreement, agreement in principle, letter Amend Seller’s articles of intent, memorandum of understanding incorporation or similar Contract with respect to any joint venture, strategic partnership or alliancebylaws; (ovi) Except as required by Law, amend any Seller Benefit Plan; (vii) Fail to use commercially reasonable efforts to maintain, replace or renew existing insurance policies; or (viii) grant any raises to any Property Employees (other than any Retained Employee) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, annual performance reviews in the Ordinary Course of Business consistent with Seller’s past practices. (b) It is agreed and understood that if Buyer does not grant or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect deny consent to a Takeover Proposal proposed action within five (5) Business Days after its receipt of a written request by Seller to take such action, Buyer shall be deemed to have consented to the taking of such action by Seller or otherwiseits Affiliates notwithstanding any other provision of Section 6.1(a). (c) Notwithstanding anything herein to the contrary (including the restrictions set forth in Section 6.1(a)), except for Buyer nothing herein shall preclude Seller or any of its Subsidiaries Affiliates from taking any action (i) that relates to the preparation of the Purchased Assets or the Property for sale and transfer to Buyer at Closing, (ii) that relates to the relocation or other preparation of shared employees of Seller and its Affiliates, (iii) that is required by Law or any Governmental Entity in order to conduct its business in compliance with Law, (iv) that exclusively relates to any Excluded Asset or Excluded Liability or (v) in order to consummate the transactions contemplated by this Agreement;hereby. (pd) abandonNotwithstanding anything to the contrary contained herein and for the avoidance of doubt, allow nothing shall prohibit Seller or its Affiliates from time to lapsetime at or prior to the Closing from (i) sweeping or otherwise removing cash, sellnegotiable instruments, assignmarketable securities and other cash equivalents or certificates of deposits, transfertime deposits, grant uncleared checks, securities or similar items from the accounts of Seller or its Affiliates or from the Property, including the Seller or its Affiliates making any security interest intransfers, otherwise encumber distributions or dispose dividends in furtherance thereof, and retaining such assets for Seller’s own account or the account of any Seller IPof its Affiliates, (ii) paying, terminating or otherwise settling, or grant any right causing Seller or license its Affiliates to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivablepay, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories terminate or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect tosettle, any material insurance policy; or (s) announce an intentionintercompany balances or transactions involving Seller, enter into any formal or informal agreement, or otherwise make a commitment to do any of its Affiliates and/or the foregoingProperty or (iii) assigning, amending or terminating any intercompany arrangements or Contracts involving Seller, any of its Affiliates and/or the Property.

Conduct of Business of Seller. During the period from the date of this Agreement Effective Date and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with and the terms Closing, subject to the limitations set forth in ARTICLE VIII (the “Interim Period”)herein, Seller shall, and Seller Parent shall cause Seller to, in each case except to the extent that Purchaser shall otherwise consent in writing, which consent may not be unreasonably withheld, conditioned or delayed, carry on the Business in the Ordinary Course of Business in all material respects, maintain the Property in a state of repair consistent with the Ordinary Course of Business in all material respects, comply with all applicable Legal Requirements and Seller Permits in all material respects, and pay its Liabilities and Taxes with respect to the Property when due (subject to good faith disputes over such Liabilities or Taxes) and use all commercially reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and preserve its relationships with customers, employees, suppliers, distributors, and others having business dealings with it in all material respects. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement or as required by applicable Law or with disclosed in Schedule 7.1 hereof, during the prior written consent of Buyer, conduct its business in period from the ordinary course of business consistent with past practice, and, to Effective Date and continuing until the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its current officers and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality earlier of the foregoing, between the date termination of this Agreement and the Closing DateClosing, without the written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Seller agrees that it shall not, without the prior written consent of Buyerand Seller Parent agrees that it shall cause Seller not to: (ai) amend or propose to amend its Charter Documents; (b) acquiresell, by mergerpledge, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transferlease, license, selldispose of, lease or otherwise dispose of (whether by way of mergerabandon, consolidation, sale of stock or assets, or otherwise) or pledgegrant, encumber or otherwise subject to any authorize or permit the sale, pledge, disposition, grant or Encumbrance (other than a Permitted Encumbrance)Encumbrances) of all or any portion of, or any Purchased Assets; provided that direct or indirect interest in, the foregoing shall not prohibit Seller from transferringProperty, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case except in the ordinary course Ordinary Course of business consistent with past practiceBusiness and except as set forth on Schedule 7.1; (dii) incur any indebtedness for borrowed money cause or issue any debt securities or assume, guarantee or endorsepermit the Property to be subjected to, or otherwise become responsible forpermit to exist on the Property, any Lien or Encumbrance, other than Permitted Encumbrances; (iii) fail to maintain the obligations existing insurance coverage of any Personall types relating to the Property (provided, or make any loans or advanceshowever, in each case the event that any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies in excess the Ordinary Course of $50,000 and affecting Business); (iv) fail to make capital expenditures at the Property required under any Gaming Law or by any Gaming Authority; (v) close or shut down the Business or the Purchased AssetsProperty, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty closures or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures shutdowns which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: are (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP action, order, writ, injunction, judgment or applicable Law; (k) institute, settle, decree or compromise any Action involving the payment of monetary damages otherwise required by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents)Legal Requirements, (ii) make due to acts of God or change any material Tax election, change any annual Tax accounting period, other force majeure events; or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver the Ordinary Course of the limitation period applicable to any material Tax claim or assessment relating to SellerBusiness; (nvi) enter into seek any agreement, agreement in principle, letter of intent, memorandum of understanding zoning or similar Contract land use changes with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policyProperty; or (svii) agree, whether or not in writing, to do any of the foregoing, or to authorize or announce an intention, enter into any formal or informal agreement, or otherwise make a commitment intention to do any of the foregoing.

Conduct of Business of Seller. During Except for matters set forth in the Seller Disclosure Schedule or as otherwise permitted or contemplated by any provision of this Agreement or required by applicable Law or in connection with the Cash Dividend, the Distribution, the Retained Cash Amount and the Seller Liquidation, during the period from the date of this Agreement until the earlier hereof to occur of the Closing or the termination of this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”)Date, Seller shallwill, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent and will cause each of Buyerits Subsidiaries to, conduct its business operations, and not take any action except in the ordinary course of business consistent with past practicepractice and in accordance with applicable Law, and, to the extent consistent therewith, Seller shall use its commercially reasonable best efforts to preserve substantially intact its current business organizationorganizations, keep available the services of its current officers and employees, preserve its assets and properties in good repair and condition, maintain in full force and effect substantially the same levels of coverage of insurance with respect to its assets, operations and activities as are in effect on the date hereof, continue to make capital expenditures pertaining to its business in accordance with Seller's capital budget existing on the date hereof and delivered to Parent, maintain the Seller Permits in full force and effect and shall timely file and prosecute any necessary applications for renewal of the Seller Permits, collect its receivables and preserve its present relationships with Governmental Authorities, customers, suppliers, distributors, licensors, licensees, distributors and other Persons others having material business relationships dealings with it. Without limiting Except for matters set forth in the generality of the foregoing, between the date Seller Disclosure Schedule or as otherwise permitted or contemplated by any provision of this Agreement or required by applicable Law and except for any actions in the ordinary course consistent with past practice or in connection with the Cash Dividend, the Distribution, the Retained Cash Amount and the Seller Liquidation, from the date hereof to the Closing Date, Seller shall will not, and will not permit any of its Subsidiaries to, without the prior written consent of BuyerParent, which consent will not be unreasonably withheld or delayed: (a) amend cause, adopt or propose any amendments to amend the Seller Articles or any charter documents of its Charter DocumentsSubsidiaries or the terms of any outstanding securities of Seller; (b) acquireauthorize for issuance, issue, sell, deliver, transfer, pledge, encumber or otherwise subject to any Lien (other than a Permitted Lien) or agree or commit to issue, sell, deliver, transfer, pledge, encumber or otherwise subject to any Lien (other than a Permitted Lien) (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities convertible into or exchangeable for any stock or any equity equivalents (including any stock options or stock appreciation rights) or make any payments based on the market price or value of shares or other capital stock of Seller, except for (i) the transfer or issuance of Seller Shares in connection with the exercise of Seller Stock Options or the vesting of Seller Restricted Shares, in each case outstanding on the date hereof or granted after the date hereof as permitted herein or (ii) the attachment of Seller Shares in connection with debt collection proceedings against certain customers of Seller; (c) (i) adjust, split, subdivide, combine, recapitalize or reclassify any shares of its capital stock; (ii) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock (other than dividends by wholly-owned Subsidiaries and ordinary dividends on Seller Shares); (iii) make any other actual, constructive or deemed distribution in respect of any shares of its capital stock or otherwise make any payments to shareholders in their capacity as such; (iv) directly or indirectly redeem, purchase, repurchase, retire or otherwise acquire any of its securities or (v) grant any Person any right or option to acquire any shares of its capital stock; (d) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, acquisition restructuring, recapitalization or other reorganization of stock Seller; (e) except for letters of credit issued in connection with pre-payments by customers in an aggregate amount up to U.S.$5 million or assetsborrowings under existing lines of credit (or any replacement thereof) in an aggregate amount up to U.S.$5 million, (i) repurchase, repay, incur or assume any long-term or short-term debt or issue any debt securities; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise, ) for the obligations of any business or Person or division thereof or other Person; (iii) make any loans, advances or capital contributions to to, or investments in in, any Personother Person (other than to Subsidiaries of Seller); (iv) pledge or otherwise encumber shares of capital stock; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create any Lien (other than a Permitted Lien) thereupon; (cf) except (i) to satisfy contractual obligations existing on the date hereof, and (ii) for any retention or employment agreement, plan or arrangement entered into or established in connection with the transactions contemplated hereby and set forth in Section 5.01(f) of the Seller Disclosure Schedule, (A) terminate, establish, implement, adopt, amend, enter into, make any new, accelerate the vesting or payment of any existing grants or awards under, amend or otherwise modify any Seller Plan or other employment, severance, change in control, termination or other similar agreement or arrangements (including the funding arrangements in respect thereof) grant plan, policy or program that would be a Seller Plan if in effect as of the date hereof; (B) increase or commit to increase the commissions, compensation or benefits, including fringe benefits, payable or accrued or that would become payable by Seller or any of its Subsidiaries or accrue in respect to any employee, director or officer of Seller; (C) waive or commit to waive any debts due to Seller or any of its Subsidiaries from any employee or director of any such company; (D) grant any severance or termination pay to any present or former director, officer or employee of Seller or its Subsidiaries, (E) loan or advance any money or other property to any present or former director, officer or employee of Seller or its Subsidiaries or (F) grant any equity or equity-based awards. (g) (i) assign, transfer, sell, license, selllease (as lessor), lease sell and leaseback or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assetsof, or otherwise) or pledge, mortgage, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance)Lien, any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferringamount of Seller's or any of its Subsidiaries' property or assets, sellingwhether tangible or intangible, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liabilitymaterial to Seller and its Subsidiaries, taken as a whole; providedor (ii) acquire any assets that are material, however, no such indebtedness, guaranty individually or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business to Seller and its Subsidiaries, taken as a whole; (h) except as may be required by applicable as a result of a change in Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensationin U.S. GAAP, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit change any of their respective Affiliates to acceleratethe accounting principles or practices used by it which would materially affect its reported consolidated assets, make liabilities or grant, any bonus (other than bonuses payable to employees results of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreementoperations; (i) enter into acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any Contract with corporation, partnership or other business organization or division thereof or any Person material equity interest therein or (ii) authorize or make any new capital expenditure or expenditures or investments exceeding U.S.$3 million in the aggregate other than (A) as contemplated by Section 4.27 Seller's current capital expenditure budget or (B) necessary and advisable to maintain the assets of Seller and its Subsidiaries in connection with or affecting the Business or the Purchased Assetsgood working order; (j) make make, change or revoke any material change in Tax election, or settle or compromise any method of financial accounting principles material claim or practicesassessment or surrender any right to a material claim for a Tax refund, in each case except for case, if such action could reasonably be expected to increase the tax liability of Seller or any such change required by a change in GAAP Subsidiary or applicable Lawdecrease any Tax attribute of Seller or any existing Subsidiary on the Closing Date; (k) institutemake or revoke any material Tax election, settle, or settle or compromise any Action involving the payment of monetary damages by Seller of material Tax liability, or change (or make a request to any amount exceeding $50,000 in the aggregate, other than (itaxing authority to change) any Action brought against Buyer arising out material aspect of a breach or alleged breach its method of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assetsaccounting for Tax purposes; (l) pay, discharge discharge, waive, settle or satisfy any claimmaterial claims, liability liabilities or obligation obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets), other than the payment, discharge or satisfaction, as required by their terms in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against effect on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practicedate hereof; (m) (i) settle or compromise any material Tax claim, audit pending litigation in which Seller or assessment any of its Subsidiaries is a named defendant for an a cash settlement amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included U.S.$1 million in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Selleraggregate; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership arrangement that limits or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of otherwise restricts Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliatesany successor thereto in any material respect or that would, after the Closing Date, limit or restrict Parent in any material respect from engaging or competing in any line of business or in any geographic area; (o) purchase a new, renew, or amend an existing, insurance policy; (p) amend in any material respect, terminate or cancel any Seller Material Contract or enter into any Contract that would be a Seller Material Contract if in effect on the date hereof; or (q) take, propose to take, or agree in writing or otherwise to take, any of the actions described in Sections 5.01(a) through 5.01(p) or any action which would (i) make any of the representations or warranties of Seller contained in this Agreement (A) which are qualified as to materiality, untrue or incorrect or (B) which are not so qualified, untrue or incorrect in any material respect or (ii) except as otherwise permitted by Section 6.04, reasonably be likely to result in any of the conditions to the consummation of the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand Agreement set forth in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoingArticle IX hereof not being satisfied.

Conduct of Business of Seller. (a) During the period from the date of this Agreement Execution Date and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with Section 4.4 or the terms set forth in ARTICLE VIII (the “Interim Period”), Seller shallClosing, except (1) for any limitations on operations imposed by the Bankruptcy Court or the Bankruptcy Code, (2) as required by applicable Law, (3) as otherwise expressly contemplated by this Agreement or as required by applicable Law set forth on Schedule 9.1(a), or (4) with the prior written consent of BuyerPurchaser (such consent not to be unreasonably withheld, conditioned or delayed), Seller shall, and shall cause its Subsidiaries to: (i) conduct the Business and operate and maintain the Acquired Assets and the assets of its business Subsidiaries in the ordinary course Ordinary Course of Business; (ii) use commercially reasonable efforts to (x) preserve the goodwill of and relationships with Governmental Bodies, customers, suppliers, vendors, lessors, licensors, licensees, contractors, distributors, agents, Employees and others having business consistent dealings with past practice, the Business; and (y) comply with all applicable Laws and, to the extent consistent therewith, preserve its assets (tangible and intangible), including the IT Assets; and (iii) diligently prosecute and maintain all Seller shall use its commercially reasonable efforts to preserve substantially intact its business organizationRegistered Intellectual Property Rights, keep available the services of its current officers and employeesincluding by making all requisite filings, renewals, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, payments. (b) During the period from the Execution Date and other Persons having business relationships with it. Without limiting continuing until the generality earlier of the foregoing, between the date termination of this Agreement and in accordance with Section 4.4 or the Closing DateClosing, except (1) for any limitations on operations imposed by, or actions required by, the Bankruptcy Court or the Bankruptcy Code, (2) as required by applicable Law, (3) as otherwise expressly contemplated by this Agreement or as set forth on Schedule 9.1(a), or (4) with the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), Seller shall not, without the prior written consent of Buyerand shall cause its Subsidiaries not to: (ai) amend mortgage, pledge or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), ) the Business or any Purchased Assets; provided that of the foregoing shall not prohibit Seller from transferring, selling, leasing Acquired Assets or disposing the assets of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practiceits Subsidiaries; (dii) incur any indebtedness for borrowed money or issue any debt securities or assumesell, guarantee or endorseassign, license, transfer, convey, lease, surrender, relinquish, abandon, permit to lapse or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination dispose of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business Acquired Assets or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any assets of its Subsidiaries or Affiliatesoffer or enter into any agreement to do any of the foregoing, or except to the transactions contemplated extent permitted by this Agreement; (piii) abandoncancel or compromise any material debt or Claim or waive or release any material right of Seller that constitutes an Acquired Asset or an asset of its Subsidiaries; (iv) (A) enter into any new Contract or renew any existing Contract requiring payments by Seller and (B) cancel, allow terminate, amend, modify, supplement or rescind any Material Contract or any terms of any Material Contract without the express written approval of the Purchaser, which shall not be unreasonably withheld or delayed, except for the purpose of effecting any changes in applicable Law or implementing regulatory requirements; (v) terminate, amend, modify or abandon any rights under any Material Contract or breach any Material Contract outside the Ordinary Course of Business; (vi) incur any long-term expenditure associated with the Acquired Assets that would be an Assumed Liability or incur any long-term expenditure associated with the assets of its Subsidiaries; (vii) incur or permit to lapsebe incurred any Liability (other than in connection with the performance of any Non-Assumed Contracts or execution of any Contracts that are not Material Contracts in the Ordinary Course of Business) that would be an Assumed Liability or that would increase the amount of an Assumed Liability; (viii) incur or permit to be incurred any Liability (other than in connection with the execution of any Contracts that are not Material Contracts in the Ordinary Course of Business) with respect to any of its Subsidiaries; (ix) (A) with respect to any Employee set forth on Schedule 9.1(b)(ix), increase the salary, bonus or severance arrangements of such Employee or amend, modify, terminate or enter into any employment or severance Contract with such Employee and (B) with respect to all other Employees, take any of the foregoing actions; (x) [reserved]; (xi) make or rescind any material Tax election, file any amended Tax Return, change its fiscal year or financial or Tax accounting methods, policies or practices, settle or compromise any Tax Liability, enter into a closing agreement with respect to Taxes or agree to an extension of the period for assessment, reassessment or collection of any Taxes; (xii) institute, settle or agree to settle or modify in any manner that is adverse to the Business, the Acquired Assets or the assets of its Subsidiaries, any litigation, action or other Legal Proceeding before any court or Governmental Body relating to the Acquired Assets and that is or will be an Assumed Liability; (xiii) (A) take any action that reasonably jeopardizes the validity of or results in the revocation, surrender or forfeiture of, any of the Permits necessary for the continued operation of the Business, (B) fail to use commercially reasonable efforts to prosecute with due diligence any pending applications with respect to the Permits, including any renewals thereof, (C) with respect to the Permits, fail to make all filings and reports and pay all fees necessary or reasonably appropriate for the continued operation of the Business of Seller, as and when such filings, reports or payments are necessary or appropriate or (D) fail to initiate appropriate steps to renew any Permits held by Seller that are scheduled to terminate prior to or within sixty (60) days after the Closing or to prosecute any pending applications for any Permit; (xiv) transfer, sell, assign, transferabandon, grant any security interest in, otherwise encumber or dispose of any Seller IP, permit to lapse or grant any right rights or license to modify any existing rights under any Seller IPIntellectual Property Rights, or enter into any settlement regarding the breach or infringement, misappropriation, dilution or other violation of, or challenge to title to, any Intellectual Property Rights; (qxv) accelerate the collection make, commit to make or incur any Liability in excess of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practiceTen Thousand United States Dollars (US$10,000) for capital expenditures; (rxvi) terminate enter into a plan of consolidation, merger, share exchange or modify in reorganization with any material respectPerson or adopt a plan of complete or partial liquidation; (xvii) authorize, declare or fail to exercise renewal rights pay any dividends on or make any distribution with respect toto its outstanding shares of capital stock (whether in cash, assets, stock or other securities); (xviii) amend the charter documents, bylaws or similar governing documents of Seller; (xix) make any material insurance policychange in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Body; or (sxx) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment Contract to do any of the foregoingforegoing or agree to do anything prohibited by this Section 9.1(b). (c) Concurrent with Closing, Seller will (i) prepare and file with the appropriate Governmental Body appropriate documents, including, but not limited to, articles of amendment, changing Seller’s name so as to effectuate the transfer of the Acquired Names and any of like names or combinations of words or derivations thereof to Purchaser and promptly deliver evidence of such name change to Purchaser and (ii) cease using the Acquired Names, and any derivations thereof.

Conduct of Business of Seller. During Except (i) as required by any Order of the Bankruptcy Court (or as reasonably necessary in connection with the Bankruptcy Case), (ii) as required by applicable Law, (iii) as contemplated or required by the terms of any Transaction Document, (iv) for reasonable actions taken or not taken in response to the COVID-19 pandemic or to comply with COVID-19 Measures (including any COVID-19 Response) or (v) as otherwise consented to in writing by Buyer (such consent not to be unreasonably withheld, conditioned or delayed), during the period from commencing on the date of this Agreement until the earlier to occur of and continuing through the Closing or the earlier termination of this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”), Seller shall, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Buyer, conduct its business in the ordinary course of business consistent with past practice, and, to the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its current officers and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Closing Date, Seller shall not, without the prior written consent of Buyerterms: (a) amend or propose Seller shall use its reasonable best efforts to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments preserve in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in all material respects the Purchased Assets; (eb) enter into Seller shall use commercially reasonable efforts to commence preparation (or cause the preparation) of any Material Contract;documents as shall be necessary to properly record the transfer and assignment of the Purchased Patents to Buyer; and (fc) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement;not: (i) enter into sell, lease (as lessor), transfer or otherwise dispose of (or permit to become subject to any Contract with additional Encumbrance, other than Permitted Encumbrances, Encumbrances arising under any Person contemplated by Section 4.27 Bankruptcy Court orders relating to the use of cash collateral (as defined in the Bankruptcy Code) and Encumbrances arising in connection with or affecting the Business or the any debtor-in-possession financing of Seller) any Purchased Assets; (jii) make delay in any material change respect the payment of any undisputed material trade accounts payable of the type being assumed by Buyer under this Agreement, including undisputed amounts payable under Assumed Contracts; (iii) amend in any method of financial accounting principles material and adverse respect or practicesvoluntarily terminate (or waive any material provision of) any Assumed Contracts; (iv) cancel, knowingly allow to lapse, fail to renew, maintain or defend, or encumber (in whole or in part) any Purchased Patent, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policybusiness; or (sv) announce an intention, enter into authorize any formal or informal agreementof the foregoing, or otherwise make a commitment commit or agree to do any of the foregoing.

Conduct of Business of Seller. During Seller agrees that during the period from the date of this Agreement until the earlier to occur of the Closing Date (unless the Buyer shall otherwise consent in writing (which consent shall not be unreasonably withheld, delayed or the termination of conditioned) and except as otherwise contemplated by this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”Agreement), Seller shallwill exercise commercially reasonable efforts to: (i) conduct its operations according to its ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, (ii) seek to preserve intact its current business organization, (iii) keep available the services of its current officers and employees and (iv) preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall not be impaired in any material respect on the Closing Date. Without limiting the generality of the foregoing, and except as expressly contemplated by otherwise permitted in this Agreement or as required by applicable Law or with set forth in Schedule 4.2, prior to the Closing Date, Seller will not, without the prior written consent of BuyerBuyer (which consent shall not be unreasonably withheld, conduct delayed or conditioned): (a) sell, pledge, lease, license or otherwise encumber or transfer any of the Purchased Assets (except for (i) the sale or other disposition of obsolete or worn-out assets or assets being replaced in the ordinary course of business prior to the Closing Date, or (ii) sales of inventory in the ordinary course of Seller’s business); (b) grant any increases in (or make any amendments to) the compensation (including, without limitation, incentive compensation) of any of its business directors, officers or employees; provided, however, that nothing contained herein shall prohibit or restrict Seller from paying to Xxxxx Xxxxxxx, Xxxx XxXxxxxx or Xxxxxxx Xxxxxxxx bonus payments in connection with the Closing from the proceeds of the sale of the Purchased Assets; (c) pay or agree to pay any pension, retirement allowance or other employee benefit not required or contemplated by any of the existing Company Plans as in effect on the date hereof to any such director or officer, whether past or present; provided, however, that nothing contained herein shall prohibit or restrict Seller from paying to Xxxxx Xxxxxxx, Xxxx XxXxxxxx or Xxxxxxx Xxxxxxxx bonus payments in connection with the Closing from the proceeds of the sale of the Purchased Assets; (d) enter into any new, or amend any existing, Company Plan or employment or severance or termination agreement with any director, officer or employee; provided, however, that nothing contained herein shall prohibit or restrict Seller from paying to Xxxxx Xxxxxxx, Xxxx XxXxxxxx or Xxxxxxx Xxxxxxxx bonus payments in connection with the Closing from the proceeds of the sale of the Purchased Assets; (e) except as may be required to comply with applicable law or as may be required by those items listed on Schedule 4.2, become obligated under any new pension plan, welfare plan, multiemployer plan, employee benefit plan, severance plan, benefit arrangement, or similar plan or arrangement, which was not in existence on the date hereof, or amend any such plan or arrangement in existence on the date hereof or amend any Company Plan if, in either case, such amendment would have the effect of enhancing any benefits thereunder; provided, however, that nothing contained herein shall prohibit or restrict Seller from paying to Xxxxx Xxxxxxx, Xxxx XxXxxxxx or Xxxxxxx Xxxxxxxx bonus payments in connection with the Closing from the proceeds of the sale of the Purchased Assets; (f) subject any of its assets, or any part thereof, to any Lien or suffer such to be imposed other than such Liens as may arise in the ordinary course of business consistent with past practice, and, practices or by operation of law which will not be discharged on or prior to the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its current officers and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Closing Date, Seller shall not, without the prior written consent of Buyer: (a) amend or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practicesaccounting principle, in each case method, estimate or practice except for any such change required by reason of a concurrent change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving write down the payment of monetary damages by Seller value of any amount exceeding $50,000 in the aggregate, other than (i) inventory or write-off as uncollectible any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, accounts receivable except in the ordinary course of business consistent with past practicepractices; (rh) settle, release or forgive (or commence) any material claim, litigation or adversarial proceeding or waive any material right, other than the settlement of the pending litigation between Seller and Colt described on Schedule 2.9; (i) amend (in a manner adverse to Seller or the Purchased Assets), terminate or modify in waive any material respect, or fail to exercise renewal rights with respect to, right under any material insurance policyof the Assumed Contracts; or (sj) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do take any of the foregoingactions described in Section 2.6(b)(viii) or (ix).

Conduct of Business of Seller. During the period from (a) From the date of this Agreement until the earlier to occur of hereof ----------------------------- through the Closing Date, Seller agrees that, unless it obtains Buyer's advance written consent to do otherwise, which consent shall not be unreasonably withheld or the termination of this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”)delayed, Seller shall, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Buyer, : (i) conduct its business in operations according to the ordinary and usual course of business consistent with past practice, and, to the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact and maintain the Assets and the good will of the Business and to use reasonable efforts to preserve its business organization, keep available the services of its current officers and relationships with employees, customers and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons others having business relationships dealings with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Closing Date, Seller shall not, without the prior written consent of Buyer:Seller. (aii) amend or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case maintain in the ordinary course of business business, consistent with past practice;practice and in accordance with all Contracts and Permits, the Equipment, the Inventory and other tangible property in their present repair, order and condition, subject to ordinary wear and tear and to the requirements of such Contracts and Permits. (diii) not incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus Liability (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business business, consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included which are not in the Seller SEC Documentsaggregate material thereto), (ii) make or change nor enter into any material Tax election, change Contract of a type required to be included on any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or Schedule hereto. (iv) enter into any material closing agreement, surrender in writing any right not undertake (nor permit to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (nbe undertaken) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoingactions specified in Sections 4.5(a) through (c). (v) conduct the Business in such a manner so that the representations and warranties of Seller contained herein shall continue to be true and correct on and as of the Closing Date as if made on and as of the Closing Date. (vi) consult with Buyer prior to any renewal, amendment, extension or termination of, waiver of any material right under, or any failure to renew, any Contract or Permit and will not take any such action if Buyer objects thereto in writing.

Conduct of Business of Seller. During the period from the date of ----------------------------- this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Sellers agree (except to the extent Buyer shall otherwise consent in writing), to carry on the Business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of the Sellers when due, to pay or perform other obligations when due, and, to the extent consistent with the Business, use their reasonable best efforts consistent with past practice and policies to preserve intact the Sellers' present business organizations and keep available the services of the Retained Employees and preserve Sellers' relationships with suppliers, licensors and licensees of, and others having business dealings with, the Business, all with the goal of preserving unimpaired the Acquired Assets and the Business. During the period from the date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement or the Closing, the Sellers shall promptly notify Buyer of any event or occurrence or emergency not in accordance with the terms set forth in ARTICLE VIII (Ordinary Course of Business of Sellers involving the “Interim Period”)Business or the Acquired Assets, Seller shalland any event which has had or could have a Material Adverse Effect on the Business or the Acquired Assets. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, except as expressly contemplated by this Agreement or as required by applicable Law set forth in Schedule 5.1, or with the prior written consent of Buyer, conduct its business in the ordinary course of business consistent neither Seller will ------------ with past practice, and, respect to the extent consistent therewithBusiness or the Acquired Assets, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available if such action would have a Material Adverse Effect on the services of its current officers and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality Acquired Assets or would prevent consummation of the foregoing, between the date of this Agreement and the Closing Date, Seller shall not, without the prior written consent of Buyertransactions contemplated hereby: (a) amend Enter into any commitment or propose to amend its Charter Documentstransaction not in the Ordinary Course of Business or any commitment or transaction of the type described in Section 3.9 hereof; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, Enter into any business or license agreement with respect to the Seller Intellectual Property with any Person or division thereof entity or make with respect to the Intellectual Property of any loans, advances Person or capital contributions to or investments entity other than in any Personconnection with the sale of inventory in the Ordinary Course of Business; (c) transfer, license, sell, lease Transfer to any Person or otherwise dispose of (whether by way of merger, consolidation, entity any rights to the Seller Intellectual Property other than in connection with the sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case inventory in the ordinary course Ordinary Course of business consistent with past practiceBusiness; (d) Enter into or amend any contract or other agreement inconsistent with or that would materially adversely affect the use of the Acquired Assets by Buyer after Closing; (e) Commence or settle any litigation that affects the Acquired Assets; (f) Issue, grant, deliver or sell or authorize or propose the issuance, grant, delivery or sale of, or purchase or propose the purchase of, any shares of Sub's capital stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue or purchase any such shares or other convertible securities; (g) Acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Business; (h) Sell, lease, license or otherwise dispose of any of its properties or assets used in the Business, except in the Ordinary Course of Business and except for a sale-leaseback transaction involving the Building (as defined in Exhibit D) whereby ICS sells the Building to a third party and leases --------- the building back for a period of at least two (2) years on terms reasonably approved in writing by Buyer (the "Sale Lease-Back"); --------------- (i) With respect to the Sub, incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations any debt securities of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assetsothers; (j) make With respect to the Sub, grant any material change loans to others or purchase debt securities of others or amend the terms of any outstanding loan agreement, except in any method the Ordinary Course of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable LawBusiness; (k) instituteGrant any severance or termination pay to any Retained Employee, settle, except payments made pursuant to standard written agreements outstanding or compromise any Action involving the payment employee policies of monetary damages by either Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against effect on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assetsdate hereof and as contemplated by Section 6.16 hereof; (l) payAdopt or amend any employee benefit plan, discharge or satisfy enter into any claimemployment contract covering any Retained Employee, liability pay or obligation (absoluteagree to pay any special bonus or special remuneration to any Retained Employee, accrued, asserted or unasserted, contingent increase the salaries or otherwise) in excess wage rates of $50,000 relating any Retained Employees or accelerate the vesting of any outstanding ICS Options subject to the Business or the Purchased Assetsvesting held by any Retained Employee, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practiceas contemplated by Section 6.16 hereof; (m) (i) settle or compromise Revalue any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to SellerAcquired Assets; (n) enter Enter into any strategic or joint marketing arrangement or agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance;; or (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person fromTake, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories agree in writing or otherwise increase cash on hand in connection with the Businessto take, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoingactions described in Sections 5.1(a) through (n) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder. In addition, Buyer agrees that it will not take any action, or omit to take any action, that would result in either Seller engaging in any of the actions set forth in this Section 5.1.

Conduct of Business of Seller. During the period from Pre-Closing Period, except (a) for any limitations on operations imposed by the date of this Agreement until the earlier to occur of the Closing Bankruptcy Court or the termination of this Agreement in accordance with the terms set forth in ARTICLE VIII Bankruptcy Code, (the “Interim Period”)b) as required by applicable Law, Seller shall, except (c) as otherwise expressly contemplated by this Agreement or as required by applicable Law set forth on Schedule 7.1 or (d) with the prior written consent of BuyerPurchaser, Seller shall: (i) conduct its business the Business and operate and maintain the Purchased Assets in the ordinary course Ordinary Course of business consistent Business, and without limiting the generality of the foregoing, will store and maintain all of the Samples at all times in accordance with past all Laws, Company standards and procedures as set forth in the Documents and disclosed to Purchaser, and industry best practice, and, to the extent consistent therewith, Seller shall ; (ii) use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services goodwill of its current officers and employees, and preserve its present relationships with Governmental Bodies, customers, suppliers, distributorsvendors, lessors, licensors, licensees, contractors, distributors, agents, Employees and other Persons others having business relationships dealings with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Closing Date, Seller shall not, without the prior written consent of Buyer: (a) amend or propose to amend its Charter DocumentsBusiness; (biii) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Personcomply with all applicable Laws; (civ) transfermaintain in full force and effect policies of insurance comparable in amount and scope of coverage to that maintained as of the Agreement Date by or on its behalf; (v) maintain the books of account and records of the Business as conducted by it in the Ordinary Course of Business and consistent with past practices; (vi) not mortgage, license, sell, lease pledge or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (evii) enter into any Material Contract; (f) amendnot sell, waiveassign, modify in any material respect license, transfer, convey, lease, surrender, relinquish or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination otherwise dispose of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (jviii) make not cancel or compromise any material claim or waive or release any material right of Seller that constitutes a Purchased Asset or otherwise relates to the Business without the consent of the Purchaser, which consent shall be unreasonably withheld; (ix) not enter into, renew, cancel, terminate, amend, modify, supplement, rescind or breach any Material Contract or any term of any Material Contract, or waive, release or assign any material rights or claims thereunder (in each case, in a manner adverse to Seller or the Business); (x) not make or rescind any material Tax election or take any material Tax position (unless required by Law) or file any amended Tax Return or change in any method of its fiscal year or financial or Tax accounting principles methods, policies or practices, or settle any Tax Liability, except in each case except for any such change required by a change as would not reasonably be expected to result in GAAP Liability to Purchaser or applicable Lawthe Business; (kxi) institute, settle, not settle or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach related to or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practicePurchased Assets or any Assumed Liability; (rxii) terminate not (A) take any action that reasonably jeopardizes the validity of or modify results in any material respectthe revocation, surrender or fail to exercise renewal rights with respect toforfeiture of, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoingMaterial Governmental Authorizations, (B) fail to use commercially reasonable efforts to prosecute with due diligence any pending applications with respect to the Material Governmental Authorizations, or (C) fail to initiate appropriate steps to renew any Material Governmental Authorizations held by Seller that are scheduled to terminate prior to or within ninety (90) days after the Closing; (xiii) not transfer, assign or abandon or grant any rights or modify any existing rights under or with respect to any Seller Intellectual Property other than in the Ordinary Course of Business; and (xiv) not authorize, or commit or agree to take, any of the actions set forth in clauses (vi) through (xiii).

Conduct of Business of Seller. 6.1.1 During the period from the date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with pursuant to Section 8.1 hereof or the terms Closing, subject to the limitations set forth in ARTICLE VIII (the “Interim Period”)below, Seller shall, and with respect to the Purchased Assets and Assumed Liabilities only, Seller Parent shall and shall cause Seller Parent’s other subsidiaries to (in each case, except as expressly otherwise contemplated by this Agreement or as required by applicable Law Law, or with to the prior written extent that Buyer shall otherwise consent of Buyerin writing, conduct which consent may not be unreasonably withheld, delayed or conditioned) (i) carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted during the 12-month period preceding the date of business consistent with past practicethis Agreement, and, (ii) pay its debts and Taxes when due (subject to good faith disputes over such debts and Taxes) and (iii) to the extent consistent therewithwith the operation of the Purchased Assets in the Ordinary Course of Business, Seller shall use its commercially reasonable efforts consistent with past practices and policies to preserve substantially intact its present business organization, keep available the services of its current officers and employees, present key employees and preserve its present relationships with customers, suppliers, suppliers and distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality of the foregoing, between except as contemplated by this Agreement, required by applicable Law or as disclosed on Section 6.1 of the Seller Disclosure Letter, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to Section 8.1 hereof or the Closing, without the written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned), Seller and Seller Parent agree, only with respect to the Purchased Assets, that they shall not: A. sell, pledge, lease, license or dispose of any of the Purchased Assets, except for (1) sales or other transfers of current assets in the Ordinary Course of Business to Persons other than Seller Parent or Affiliates or Seller or Seller Parent in connection with the operation of the Property, (2) sales or other dispositions of obsolete or worthless items, (3) sales of equipment and personal property in the Ordinary Course of Business to Persons other than Seller Parent or Affiliates of Seller or Seller Parent (provided that to the extent the net proceeds of any such sales pursuant to this clause (3) exceed $10,000 in the aggregate, such net cash proceeds shall be reinvested by Seller in other assets that are, or become, Purchased Assets hereunder), and (4) leases and rentals in the Ordinary Course of Business, which, in each case, shall be subject to Section 6.1.1.G (provided, however, that, for the avoidance of doubt, Buyer acknowledges and agrees that Seller’s use of any and all cash and cash equivalents shall not be restricted in any manner by this Section 6.1.1); B. except for Liens securing indebtedness referred to in clause 6.1.1.C(iii) below and any other Liens that will not survive the Closing hereunder, subject the Purchased Assets to a Lien, other than Permitted Encumbrances and Mechanics’ Liens; C. incur (with respect to Seller), or allow Seller to incur (with respect to Seller Parent), any indebtedness for borrowed money, except (i) in the Ordinary Course of Business not to exceed, individually or in the aggregate, $100,000, so long as such indebtedness does not become an Assumed Liability and/or encumber the Property or any Purchased Assets after the Transfer Time, (ii) indebtedness among Seller and Seller Parent or its Affiliates, so long as such indebtedness would not encumber the Property or any Purchased Assets after the Transfer Time, and (iii) indebtedness under any credit facility of Seller Parent or its Affiliates and in respect of guarantees under the 2010 Credit Agreement, so long as such indebtedness would not encumber the Property or any Purchased Assets after the Transfer Time; D. modify or amend in any material respect, or terminate, any of the Material Assumed Contracts, or release or assign any material rights or claims, or waive any material rights or claims, except for such rights or claims waived in the Ordinary Course of Business the waiver of which would not have a material financial impact on the Property following the Closing Date; provided, however, that (i) the term of any Assumed Contract may be extended by Seller, so long as (x) such Assumed Contract, as so extended, does not expire later than the Closing Date or (y) such Assumed Contract is terminable by Buyer after the Closing Date, Seller shall notat Buyer’s sole discretion, by giving no greater than 30 days’ notice, without the prior written consent payment of Buyer: any consideration for such termination, and (aii) in the case of any contract relating to the Property and also to one or more of the Other Properties, Seller shall be permitted to modify or amend or propose such contract to amend its Charter Documentsthe extent reasonably necessary to allow for the assignment to (and assumption by) Buyer of such contract with respect to the Property, as contemplated by this Agreement, so long as the economic terms of such agreement applicable to the Property are not materially modified; E. fail to maintain all existing insurance coverage relating to the Purchased Assets (b) acquireprovided, however, in the event any such coverage shall be terminated or lapse, to the extent available at reasonable cost, Seller may procure substantially similar substitute insurance policies which in all material respects are in at least such amounts and against such risks as are currently covered by mergersuch policies); F. award or increase any bonuses, consolidation, acquisition of stock or assetssalaries, or otherwiseother compensation (except as required by an existing Contract or arrangement or as set forth in Section 6.1 of the Seller Disclosure Letter) to any Property Employee, or enter into any business employment, severance or Person or division thereof or make similar Contract with any loansProperty Employee (provided, advances or capital contributions however, that Seller shall be permitted in its discretion to or investments in establish retention and/or severance arrangements for Property Employees after consultation with Buyer regarding same, so long as Buyer has no liability for any Personsuch retention and/or severance arrangements); G. enter into any Contract to be assumed by Buyer under this Agreement which (cA) transferexpires later than the Closing Date; (B) involves aggregate consideration during the remaining term thereof in excess of $10,000 per month; or (C) is between Seller and any Affiliate of Seller; provided, licensehowever, sellthat Seller may enter into the following Contracts without any consent from Buyer: (1) any reservations, lease advance booking contracts, room allocation agreements and banquet facility and service agreements entered into in accordance with Section 6.12.1 and at market rates in the Ordinary Course of Business and (2) any purchase order in the Ordinary Course of Business for a period not to exceed six months; H. transfer any Personal Property from the Property to any other location of Seller Parent, except as set forth in Section 6.1 of the Seller Disclosure Letter and except for any other Personal Property transferred in the Ordinary Course of Business and having an aggregate value not greater than $5,000; I. subject to Section 6.15, fail to maintain the Property in its repair and condition as of the date of this Agreement in all material respects, ordinary wear and tear excepted; J. modify or otherwise dispose rescind any of (whether by way the material transferable Seller Permits to be transferred to Buyer at the Closing except modifications in the Ordinary Course of merger, consolidation, sale of stock or assetsBusiness, or otherwise) fail to use good faith efforts to obtain any renewal or pledgeextension, encumber as may be required by Law, of any material Seller Permits in the Ordinary Course of Business; K. except as otherwise expressly permitted or otherwise subject to required by this Agreement, enter into any Encumbrance (transactions with any Affiliate of Seller, other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case transactions in the ordinary course Ordinary Course of business Business and consistent with past practice that do not extend beyond the Closing Date; L. reduce reservation rates for hotel stays to take place after the Closing Date, except for reductions made in the Ordinary Course of Business and consistent with past practice; (d) incur any indebtedness M. fail to maintain the existing marketing plan for borrowed money or issue any debt securities or assumethe Property, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse as disclosed to Buyer prior to the Business or the Purchased Assets or consent to the termination date of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant N. enter into any security interest in, otherwise encumber leases for retail or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate restaurant space at the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policyProperty; or (s) announce an intention, O. enter into any formal or informal agreement, or otherwise make a commitment Contract to do any of the foregoingforegoing prohibited by this Section 6.1.1, or authorize any of the foregoing prohibited by this Section 6.1.1. 6.1.2 If Buyer does not grant or deny consent to a proposed action within ten Business Days of its receipt of a written request by Seller to take such action, Buyer shall be deemed to have consented to the taking of such action by Seller notwithstanding any other provision of Section 6.1.1 hereof. 6.1.3 Notwithstanding anything herein to the contrary (including the restrictions set forth in Section 6.1.1 hereof), nothing herein shall preclude Seller from taking any action that is required by Law or any Governmental Entity in order to consummate the transactions contemplated hereby.

Conduct of Business of Seller. (a) During the period from the date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with pursuant to Section 9.1 hereof or the terms Closing, subject to the limitations set forth in ARTICLE VIII (the “Interim Period”)below and subject to Section 7.24, Seller shall, and with respect to the Purchased Assets only, Parent shall and shall cause Parent’s other subsidiaries to (in each case, except as expressly otherwise contemplated by this Agreement or as Agreement, required by applicable Law Law, or with to the prior written extent that Buyer shall otherwise consent of Buyerin writing, conduct which consent may not be unreasonably withheld, delayed or conditioned), carry on its business in the usual, regular and ordinary course of business consistent with past practicein substantially the same manner as previously conducted, to pay its debts and Taxes when due (subject to good faith disputes over such debts), and, to the extent consistent therewithwith the operation of the Purchased Assets in the Ordinary Course of Business, Seller shall use its commercially reasonable efforts consistent with past practices and policies to preserve substantially intact its present business organization, keep available the services of its current officers and employees, present key employees and preserve its present relationships with customers, suppliers, suppliers and distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality of the foregoing, between except as contemplated by this Agreement, required by applicable Law or as disclosed on Section 7.1 of the Seller Disclosure Letter, and subject to Section 7.24, during the period from the date of this Agreement and continuing until the Closing Date, Seller shall notearlier of the termination of this Agreement pursuant to Section 9.1 hereof or the Closing, without the prior written consent of BuyerBuyer (which consent shall not be unreasonably withheld, delayed or conditioned), Seller and Parent agree, only as it relates to the Purchased Assets, that they shall not: (ai) amend or propose to amend its Charter Documents; (b) acquiresell, by mergerpledge, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transferlease, license, sell, lease or otherwise dispose of (whether by way or grant any of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided(1) dividends or distributions of cash or cash equivalents, however(2) payments of cash, no such indebtedness, guaranty and sales or other obligation shall be secured by any interest transfers of any kind current assets, in the Purchased Assets; Ordinary Course of Business in connection with the operation of the Property, (e3) enter into any Material Contract; (f) amendsales of equipment, waivepersonal property and other non-current assets in the Ordinary Course of Business in an amount not to exceed, modify in any material respect individually or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; 3,000,000, (h4) except as may be required by applicable Law other sales which do not exceed, either individually or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, $1,000,000, (5) sales or other than dispositions of obsolete or worthless items, and (i6) any Action brought against Buyer arising out leases and rentals in the Ordinary Course of a breach or alleged breach of this Agreement by Buyer and Business, which, in each case, shall be subject to Section 7.1(a)(vii); (ii) except in the settlement Ordinary Course of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or for Liens securing indebtedness referred to in clause (iii)(c) below, subject the Purchased AssetsAssets to a Lien, other than Permitted Encumbrances and Mechanics’ Liens; (liii) payincur (with respect to Seller), discharge or satisfy allow Seller to incur (with respect to Parent), any claimindebtedness for borrowed money, liability or obligation except (absolute, accrued, asserted or unasserted, contingent or otherwiseA) in excess the Ordinary Course of $50,000 relating Business though not to the Business exceed, individually or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course aggregate, $1,000,000, (B) indebtedness among Seller and Parent or its Affiliates, and (C) indebtedness under any credit facility of business consistent with past practice, Parent or its Affiliates and in respect of Liabilities reflected or reserved against on guarantees under the Balance Sheet or subsequently incurred in the ordinary course 8.5% Senior Secured Notes due 2015 issued by Affiliates of business consistent with past practiceParent; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset modify or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify amend in any material respect, or terminate, any of the Material Assumed Contracts, or waive, release or assign any material rights or claims, except in the Ordinary Course of Business; (v) fail to exercise maintain all existing insurance coverage relating to the Purchased Assets (however, in the event any such coverage shall be terminated or lapse, to the extent available at reasonable cost, Seller may procure substantially similar substitute insurance policies which in all material respects are in at least such amounts and against such risks as are currently covered by such policies); (vi) award or increase any bonuses, salaries, or other compensation, except in the Ordinary Course of Business, to any Property Employee, or enter into any employment, severance or similar Contract with any Property Employee; (vii) enter into any Contract to be assumed by Buyer under this Agreement which (A) expires later than the Closing Date (unless such Contract is terminable after the Closing Date, without the payment of any consideration for early termination, at Buyer’s sole discretion); (B) involves aggregate consideration during the remaining term thereof in excess of $25,000 per month; or (C) is between Seller and any Affiliate of Seller; provided, however, that Seller may enter into the following Contracts without any consent from Buyer: (1) any reservations, advance booking contracts, room allocation agreements and banquet facility and service agreements entered into in accordance with Section 7.12(a) and at market rates in the Ordinary Course of Business; (2) any purchase order in the Ordinary Course of Business; and (3) any collective bargaining agreement or memoranda of understanding with the parties set forth in Section 5.10 of the Seller Disclosure Letter; (viii) transfer any Personal Property from the Property to any other location of Parent, except in the Ordinary Course of Business; (ix) fail to maintain the Property in its current repair and condition in all material respects, ordinary wear and tear excepted; (x) modify or rescind any of the material transferable Seller Permits to be transferred to Buyer at the Closing except in the Ordinary Course of Business, or fail to use good faith efforts to obtain any renewal rights with respect toor extension, as may be required by Law, of any material insurance policySeller Permits in the Ordinary Course of Business; (xi) allow any Hazardous Materials to be Released at, in, on or under the Property, except (i) for such quantities or types of Hazardous Materials that are reasonably required for the operation of the Property and in compliance with Environmental Law or (ii) as would not reasonably be expected to have a Property Material Adverse Effect; (xii) except as otherwise expressly permitted or required by this Agreement, enter into any transactions with any Affiliate of Seller that is not entered into in the Ordinary Course of Business and consistent with past practice; or (sxiii) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment Contract to do any of the foregoingforegoing prohibited by this Section 7.1(a), or to authorize or announce an intention to do any of the foregoing prohibited by this Section 7.1(a). (b) It is agreed and understood that if Buyer does not grant or deny consent to a proposed action within five (5) Business Days of its receipt of a written request by Seller to take such action, Buyer shall be deemed to have consented to the taking of such action by Seller notwithstanding any other provision of Section 7.1(a) hereof. (c) Notwithstanding anything herein to the contrary (including the restrictions set forth in Section 7.1(a) hereof), nothing herein shall preclude Seller from taking any action that is required by Law or any Governmental Entity in order to consummate the transactions contemplated hereby.

Conduct of Business of Seller. During 5.1 Conduct of Defense Business and Business of MSSC Pending the Acquisition. Except as contemplated by this Agreement, or as expressly agreed to in writing by Buyer, during the period from the date of this Agreement until to the earlier Closing Date, each of Seller and MSSC will conduct their respective operations according to occur its ordinary course of business consistent with past practice, and will use all commercially reasonable efforts to preserve intact its business organization, to keep available the services of its officers and employees and to maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with it and will take no action which would materially adversely affect the ability of the Closing or parties to consummate the termination of this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”), Seller shall, except as expressly transactions contemplated by this Agreement or have a GAC Material Adverse Effect. Without limiting the generality of the foregoing, and except as required by applicable Law or with otherwise expressly provided in this Agreement, prior to the Closing Date, Seller will not nor will it permit MSSC to, without the prior written consent of Buyer, conduct which consent shall not be unreasonably withheld: (a) amend its certificate of incorporation, by-laws or other organizational documents; (b) authorize for issuance, issue, sell, deliver, grant any options for or otherwise agree or commit to issue, sell or deliver any shares of any class of its capital stock or any securities convertible into shares of any class of its capital stock; (c) split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock or purchase, redeem or otherwise acquire any shares of its own capital stock or of its subsidiary, except as otherwise expressly provided in this Agreement; (d) (i) create, incur, assume, maintain or permit to exist any debt for borrowed money other than under existing lines of credit in the ordinary course of business consistent with past practice; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other person except in the ordinary course of business and consistent with past practices; or (iii) make any loans, advances or capital contributions to, or investments in, any other person in an aggregate amount not to exceed $10,000; (i) increase in any manner the compensation of (x) any employee except in the ordinary course of business consistent with past practice or (y) any of its directors or officers; (ii) pay or agree to pay any pension, retirement allowance, welfare benefit or other employee benefit not required, or enter into or agree to enter into any agreement or arrangement with such director or officer or employee, whether past or present, relating to any such pension, retirement allowance, welfare benefit or other employee benefit, except as required under currently existing agreements, plans or arrangements; (iii) grant any severance or termination pay to, or enter into any employment or severance agreement with, (x) any employee except in the ordinary course of business consistent with past practice or (y) any of its directors or officers except for honorarium payments to outside directors of Seller or MSSC in an amount not to exceed $10,000 in the aggregate for each director; or (iv) except as may be required to comply with applicable law, become obligated (other than pursuant to any new or renewed collective bargaining agreement) under any new pension plan, welfare plan, multi-employer plan, employee benefit plan, benefit arrangement, or similar plan or arrangement, which was not in existence on the date hereof, including any bonus, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or other benefit plan, agreement or arrangement, or employment or consulting agreement with or for the benefit of any person, or amend any of such plans or any of such agreements in existence on the date hereof; provided, however, that this clause (iv) shall not prohibit Seller or MSSC from renewing any such plan, agreement or arrangement already in existence on terms no more favorable to the parties to such plan, agreement or arrangement; (f) except as otherwise expressly contemplated by this Agreement, enter into any other agreements, commitments or contracts, except agreements, commitments or contracts for the purchase, sale or lease of goods or services involving payments or receipts by Seller or MSSC in excess of $10,000, other than (i) customer agreements; (ii) leases for rental space in an amount not to exceed $10,000 for any lease; or (iii) developer agreements in an amount not to exceed $10,000 for any agreement; (g) authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into any agreement in principle or an agreement with respect to, any plan of liquidation or dissolution, any acquisition of a material amount of assets or securities, any sale, transfer, lease, license, pledge, mortgage, or other disposition or encumbrance of a material amount of assets or securities or any material change in its capitalization, or any entry into a material contract or any amendment or modification of any material contract or any release or relinquishment of any material contract rights; (h) authorize or commit to make capital expenditures in excess of $10,000 for any one order in Seller's service business (other than purchases by Seller's or MSSC's systems business in the ordinary course of business consistent with past practice, and, to the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its current officers and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Closing Date, Seller shall not, without the prior written consent of Buyer: (a) amend or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into make any Contract with any Person contemplated change in the accounting methods, accounting practices or Tax policies or procedures followed by Section 4.27 in connection with Seller or affecting the Business or the Purchased AssetsMSSC; (j) make settle any material change action, suit, claim, investigation or proceeding (legal, administrative or arbitrative) in any method excess of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law$10,000 without the consent of Buyer; (k) institute, settle, or compromise make any Action involving election under the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of Code which would have a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance SheetGAC Material Adverse Effect; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets;or (l) payagree, discharge commit or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment intention to do any of the foregoing.

Conduct of Business of Seller. During the period from the date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement or the Closing Date, Seller agrees, with respect to the operation of the Product Line (except to the extent that Buyer shall otherwise consent in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”writing, which consent shall not be unreasonably withheld), to carry on the Business in substantially the same manner as conducted immediately prior to the date of this Agreement, and continue to pay its debts and taxes when due, to pay or perform other obligations when due, and use reasonable efforts to preserve intact the NetLOCK's Assets and Equipment that are being acquired pursuant to this Agreement, all material relationships with third parties that have existing written or oral agreements with Seller shallwith respect to the NetLOCK Product Line, except as expressly contemplated and services of NetLOCK's present officers and employees, subject to the distribution of layoff notices to all such employees by this Agreement Seller on September 2, 1997. Seller shall promptly notify Buyer of any event or as required by applicable Law occurrence or with the prior written consent of Buyer, conduct its business emergency not in the ordinary course of business consistent with past practice, and, to the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its current officers and employeesSeller, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with itany event which could have a Material Adverse Effect. Without limiting the generality of the foregoing, between the date of Except as expressly contemplated by this Agreement and the Closing DateAgreement, Seller shall not, without the prior written consent of BuyerBuyer (which shall be given, or reasonably withheld within two (2) business days after receipt of written request therefor and in the event that Buyer fails to respond at the end of the second business day, such lack of response shall be deemed to be a consent) and notwithstanding the foregoing: (a) amend Enter into any commitment or propose transaction primarily related, directly or indirectly, to amend its Charter Documentsthe operation of the Product Line not in the ordinary course of business; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject Transfer to any Encumbrance (person or entity any rights to Seller's Intellectual Property primarily related, directly or indirectly, to the operation of the Product Line other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent in conjunction with past practicelicense agreements of the Seller's commercially available products; (c) Enter into or amend any agreements pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products of Seller primarily related, directly or indirectly, to the operation of the Product Line other than in the ordinary course of business in conjunction with license agreements of the Seller's commercially available products; (d) incur any indebtedness for borrowed money Amend or issue any debt securities otherwise modify (or assumeagree to do so), guarantee or endorseexcept in the ordinary course of business, or otherwise become responsible for, violate the obligations terms of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased AssetsContracts; (e) enter into Commence any Material Contractlitigation primarily related, directly or indirectly, to the operation of the Product Line; (f) amendAcquire or agree to acquire by merging or consolidating with, waiveor by purchasing a substantial portion of the assets of, modify in or by any material respect other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in a manner adverse the aggregate, to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rightsProduct Line; (g) authorize Sell, lease, license or make otherwise dispose of any commitment with respect to any single capital expenditure for of the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a wholeAssets; (h) except as may be required by applicable Law As it relates to the Seller's employees engaged in the operation of the Product Line, adopt or under amend any Seller Employee Plan employee benefit plan, or Material Contract: (i) enter into any employment contract, pay or agree to pay any special bonus or special remuneration to any director or employee, or increase the compensation, severance salaries or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreementwage rates; (i) enter into Revalue any Contract with any Person contemplated by Section 4.27 of the Equipment other than in connection with or affecting the Business or the Purchased Assetsordinary course of business; (j) make Grant any material change security interest in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Lawthe Assets; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) payPay, discharge or satisfy satisfy, in any amount, any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets), other than the payment, discharge or satisfaction, satisfaction of the foregoing in the ordinary course of business consistent with past practicebusiness; provided, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; further that this subsection (mk) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right shall not apply to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract actions taken with respect to any joint venture, strategic partnership unassumed Liabilities so long as such actions do not adversely affect the Assets or alliancethe Business; (ol) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person fromTake, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories agree in writing or otherwise increase cash on hand in connection with the Businessto take, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoingactions described in Sections 5.1(a) through 5.1(k) above, or any other action that would prevent Seller from performing or cause Seller not to perform its covenants hereunder.

Conduct of Business of Seller. During the period from the date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with or the terms Closing, subject to the limitations set forth in ARTICLE VIII (the “Interim Period”)below, Seller shall, agrees (except as expressly to the extent contemplated by this Agreement or as required by applicable Law to the extent that Buyer shall otherwise consent in writing, such consent not to be unreasonably withheld, conditioned or delayed) to carry on the business of the Company and the Company Subsidiary in the Ordinary Course of Business, to pay its debts and Taxes when due (subject to good faith disputes over such debts or Taxes), to continue to make maintenance capital expenditures in the Ordinary Course of Business and consistent with the prior written consent of BuyerCap Ex Plan (as defined below), conduct its business to market and promote the Property in the ordinary course Ordinary Course of business consistent with past practiceBusiness, and, to the extent consistent therewithwith the operation of the Property in the Ordinary Course of Business, Seller shall use its commercially all reasonable efforts consistent with past practices and policies to preserve substantially intact its present business organization, keep available the services of its current present officers and employees, key employees and preserve its present relationships with customers, employees, suppliers, distributors, licensors, licensees, and other Persons others having business relationships dealings with it. Without limiting the generality of the foregoing, between except as expressly contemplated by this Agreement or as disclosed on Section 4.1 of the Seller Disclosure Letter, during the period from the date of this Agreement and continuing until the Closing Date, Seller shall notearlier of the termination of this Agreement or the Closing, without the prior written consent of BuyerBuyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller agrees that the Company and the Company Subsidiary shall not: (a) sell, pledge, lease, license, dispose of, grant, Encumber or otherwise authorize the sale, pledge, lease, license, disposition, grant or Encumbrance of any of its property or assets, except for (i) sales of current assets in the Ordinary Course of Business in connection with operation of the Property or (ii) sales of equipment and other non-current assets in the Ordinary Course of Business in connection with operation of the Property; (b) (i) split, combine or classify its capital stock, or (ii) purchase, redeem or otherwise acquire any shares of capital stock or other securities of the Company or the Company Subsidiary or any warrants, options or other rights to acquire any such shares or other securities; (c) incur any material Liabilities, except in the Ordinary Course of Business; (d) violate, modify, amend or terminate any of the Material Contracts or waive, release or assign any material rights or claims, except in the Ordinary Course of Business or as required by applicable Law; (e) cause or permit any of its property or assets to be subjected to a Lien or Encumbrance, other than Permitted Encumbrances; (f) fail to maintain its existing insurance coverage of all types (however, in the event any such coverage shall be terminated or lapse, to the extent available at reasonable cost, the Company may procure substantially similar substitute insurance policies which in all material respects are in at least such amounts and against such risks as are currently covered by such policies); (g) make any changes to advertising or marketing plans or activities of the Company or the Company Subsidiary, other than in the Ordinary Course of Business; (h) terminate any of the Employees, except in the Ordinary Course of Business; (i) transfer any of the Employees to properties, casinos or hotels owned or operated by Seller’s Affiliates (other than the Property); (j) authorize or make capital expenditures in the aggregate in excess of the Company’s capital expenditure plan as of the date of this Agreement, a copy of which is set forth in Section 4.1(j) of the Seller Disclosure Letter (the “Cap Ex Plan”); (k) close or shut down the Property, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Law, or (ii) due to acts of God or other force majeure events; (l) enter into any Contract, or series of related Contracts which (i) expires after the one year anniversary of the date of this Agreement (unless such Contract can be terminated on thirty (30) days’ notice or less without cause and without the payment of any consideration for early termination) or (ii) regardless of length, has not been provided for in the budget of the Company or the Company Subsidiary delivered or made available to Buyer prior to the Final Diligence Delivery Date and involves aggregate consideration in excess of $10,000 per month, (iii) is between the Company or the Company Subsidiary and any Affiliates of Seller, (iv) contains any restrictions on the operations of the Property following the Closing or (v) would constitute a Material Contract pursuant to the terms of this Agreement, including, without limitation, any Labor Agreements; provided, however, that the Company or the Company Subsidiary may enter into the following agreements without any consent from Buyer: (A) any advance booking contract encompassing the time period up to and including the one year anniversary of the date of this Agreement which does not involve a room block commitment in excess of five hundred (500) room nights; and (B) purchase orders in the Ordinary Course of Business; (m) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any shares of its capital stock, any other equity or voting interests or any securities convertible into, or exchangeable for, or any warrants, options or other rights to acquire or receive, any such shares, interests or securities or any “phantom” stock, “phantom” stock rights or awards, stock appreciation rights, or stock-based performance units; (n) amend or propose to amend its Charter Documentsthe organizational documents of the Company or the Company Subsidiary; (bo) acquire, acquire or agree to acquire by merger, consolidation, acquisition of stock merging or assetsconsolidating with, or otherwiseby purchasing a substantial equity interest in or a substantial portion of a material amount of assets of, or by any other manner, any business or Person any corporation, partnership, association or other business organization or division thereof or make otherwise acquire or agree to acquire any loansassets, advances or capital contributions to or investments other than in any Personthe Ordinary Course of Business; (cp) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject grant to any Encumbrance Employee any material increase in (i) compensation, bonus or other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing benefits or disposing of obsolete equipment (ii) severance or assets being replacedtermination pay, in each case case, except (A) as required by any Company Benefit Plan as in effect on the date of this Agreement, (B) increases in cash compensation in the ordinary course Ordinary Course of business consistent Business and (C) solely in respect of any director or officer of the Company or the Company Subsidiary, in accordance with past practicethe Company’s annual performance appraisal process; (dq) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Company Benefit Plan that will have an impact on unless the Business; effect thereof would be neither material nor adverse to the Company or the Company Subsidiary or (ivii) enter intoaccelerate, amend fund or terminate secure the vesting or payment of compensation or benefits under any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practicesCompany Benefit Plan, in each case except for any such change the entry into of employment agreements with new hires in the Ordinary Course of Business or as required by a change any Company Benefit Plan as in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against effect on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess date of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (pr) abandonexcept as required by GAAP or applicable Law, allow to lapsemake a change in its fiscal year, sellrevalue any of its material assets or make material changes in financial or Tax accounting methods, assign, transfer, grant any security interest in, otherwise encumber principles or dispose of any Seller IP, or grant any right or license to any Seller IPpractices; (qs) accelerate make any material election with respect to Taxes (other than elections that are consistent with past practice), including any election to treat the collection Company or the Company Subsidiary other than as a disregarded entity for federal, state and other applicable income Tax purposes, enter into any settlement or compromise of any material Tax Liability or discount refund, or amend any Accounts Receivablematerial Tax Return; (t) amend, delay modify, extend or terminate any of the payment of Liabilities that would become Assumed Liabilities or defer expensesLease Documents, reduce Inventories or otherwise increase cash enter into any Contract or other agreement affecting the Real Property, the Vessel or the Property or any interests therein (other than removing, as of the Closing, the Company and the Company Subsidiary as parties to the Unitary Lease in accordance with Section 4.19 hereof) and taking the actions required by Section 4.19; (u) incur any obligation or Liability to, or enter into or agree to enter into any transaction with or for the benefit of, any Affiliate of the Company or the Company Subsidiary other than in the Ordinary Course of Business; (v) forgive or cancel any Indebtedness not in the Ordinary Course of Business; (w) alter the redemption or point award aspects of any of the Company’s frequent player award programs in any manner that is materially different from the Company’s current policies or promotions it has implemented on hand in connection with the Businessa regular basis, except in the ordinary course Ordinary Course of business consistent with past practiceBusiness; (rx) terminate reduce, or otherwise modify in any material respecta materially adverse manner, or fail the Company’s policies, standards and procedures for the issuance of credit to exercise renewal rights with respect toits customers, any material insurance policyexcept in the Ordinary Course of Business; or (sy) agree, whether or not in writing, to do any of the foregoing, or to authorize or announce an intention, enter into any formal or informal agreement, or otherwise make a commitment intention to do any of the foregoing.

Conduct of Business of Seller. During the period from the date of this Agreement hereof ----------------------------- and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with or the terms set forth in ARTICLE VIII (the “Interim Period”)Effective Time, Seller shall, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Buyer, conduct shall carry on its business in the usual, regular and ordinary course in substantially the same manner as conducted prior to the date of business consistent with past practice, this Agreement and, to the extent consistent therewithwith such business, Seller shall use its commercially reasonable efforts to preserve substantially intact its present business organizationorganizations, keep available the services of its current officers and employees, present service providers and preserve its present relationships with customers, suppliers, distributors, licensorslicensers, licensees, and other Persons having others with whom it has business relationships with itdealings, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Time. Seller shall promptly notify Buyer of any material event or occurrence not in the ordinary course of business of Seller, and any event that could have a material and adverse effect on the business condition of Seller. Without limiting the generality of the foregoing, between the date of except as expressly contemplated by this Agreement and the Closing DateAgreement, Seller shall notSeller, without the prior written consent of BuyerBuyer (not to be unreasonably withheld or delayed), shall not: (a) Accelerate, amend or propose to amend its Charter Documents;change the period of exercisability of options, warrants, stock or purchase rights or authorize cash payments in exchange therefor other than as set forth on Schedule B hereto; ---------- (b) acquireTransfer to any person or entity any rights to the Seller Intellectual Property Rights, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Personexcept End User Licenses and Distribution Agreements; (c) transferDeclare or pay any dividends on or make any other distributions (whether in cash, licensestock or property) in respect of any Seller Capital Stock, sellor split, lease combine or reclassify any of Seller Common Stock or issue or authorize the issuance of other securities in respect of, in lieu of, or in substitution for shares of Seller Capital Stock, or repurchase or otherwise acquire, directly or indirectly, any shares of Seller Capital Stock except as set forth in the Seller Disclosure Schedule, pursuant to the exercise of outstanding Seller Options or pursuant to repurchases of Seller Common Stock at cost from former employees or former service providers in accordance with the terms of agreements providing for the repurchase of shares in connection with any termination of service to Seller; (d) Issue, deliver or sell or authorize or propose the issuance, delivery or sale of or authorization of, the purchase of any shares of Seller Capital Stock or securities convertible into, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any such shares or other convertible securities, other than the issuance of shares of Seller Common Stock upon the exercise of Seller Options; (e) Cause or permit any amendments to Seller's charter or Bylaws, or take any action or make any filings with any federal or state regulatory agency or department that would modify or alter Seller's corporate, legal or regulatory status in any material respect; (f) Acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets that would be material, individually or in the aggregate, to the business condition of Seller, except as in accordance with its existing capital budget previously disclosed to Buyer; (g) Sell, lease, license or otherwise dispose of (whether by way any of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment its properties or assets being replaced, in each case except in the ordinary course of business consistent with past practicebusiness; (dh) incur Incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations any debt securities of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreementothers; (i) Adopt or amend any plan, or enter into any Contract with employment contract, pay any Person contemplated by Section 4.27 special bonus or special remuneration to any service provider, or increase the salaries or wage rates of its employees other than pursuant to scheduled employee reviews under normal employee review cycles or pursuant to Seller's existing bonus plans, as the case may be, or in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method hiring of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, employees other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, officers in the ordinary course of business business, in all cases consistent with past practice, or otherwise increase or modify the compensation or benefits payable or to become payable by Seller to any of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred its service providers, except for employees other than officers in the ordinary course of business business, consistent with past practice; (m) (i) settle , or compromise any material Tax claim, audit or assessment for an amount materially changes pursuant to employment agreements in excess effect as of the amount reserved date hereof or accrued as set forth on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to SellerSchedule B; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoing.

Conduct of Business of Seller. During the period from the date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement or the Closing Date, Seller agrees (except to the extent that Buyer shall otherwise consent in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”writing), Seller shall, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Buyer, conduct to carry on its business in the usual, regular and ordinary course of business consistent in substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, maintain insurance against loss or damage to the Assets and such other insurance with past practicerespect to the Assets as heretofore been maintained, to pay or perform other obligations when due, and, to the extent consistent therewithwith such business, Seller shall use its commercially all reasonable efforts consistent with past practice and policies to preserve substantially intact its Seller's present business organizationorganizations, keep available the services of its current present officers and employees, key employees and preserve its present their relationships with customers, suppliers, distributors, licensors, licensees, and other Persons others having business relationships dealings with it. Without limiting , all with the generality goal of preserving unimpaired the foregoingAssets, between including without limitation, Seller's goodwill and the date of this Agreement and Business at the Closing Date. Seller shall promptly notify Buyer of any event or occurrence or emergency not in the ordinary course of business of Seller, and any event which could have a Material Adverse Effect. Except as expressly contemplated by this Agreement, Seller shall not, without the prior written consent of Buyer:Buyer (which shall be given, or reasonably withheld, in the cases of clauses (f), (g) and (h) below, within one business day after receipt of written request therefor): (a) amend Enter into any commitment or propose to amend its Charter Documentstransaction not in the ordinary course of business; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject Transfer to any Encumbrance (other than a Permitted Encumbrance), person or entity any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating rights to Seller's Intellectual Property; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoing.

Conduct of Business of Seller. During the period from (a) From the date hereof through the Closing Date, the risk of this Agreement until the earlier to occur loss of the Closing or Assets and of the termination of this Agreement Business remain with Seller, which must therefore be able to conduct business in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”)ordinary course. However, Seller shallacknowledges that Buyer has current rights and expectations based on this Agreement. Therefore, except as expressly contemplated by this Agreement or as required by applicable Law or Seller agrees: (i) To conduct the operations of the Business prudently and according to the ordinary and usual course of the Business, to use reasonable best efforts to preserve intact the present business organization and structure, to use reasonable best efforts to keep available the services of the present officers, agents and full-time employees of the Business, to use reasonable best efforts to preserve and maintain the Assets and the good will of the Business and to use reasonable best efforts to preserve the relationships of Seller with customers and suppliers, and others having business dealings with Seller in respect of the prior written consent of Buyer, conduct its business Business. (ii) To maintain in the ordinary course of business consistent the Business, in accordance with past practiceall Contracts, andthe Real Property, to the extent consistent therewithEquipment, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its current officers and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, Inventory and other Persons having business relationships with it. Without limiting the generality of the foregoingtangible property in their present repair, between the date of this Agreement order and the Closing Datecondition, Seller shall not, without the prior written consent of Buyer: (a) amend or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice;wear and tear. (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend Not to incur any Liability or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 relating to the Business, other than reasonable Contracts having a term of one year or less and Liabilities incurred in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practicesa reasonable amount, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfactioncase, in the ordinary course of business consistent with past practicethe Business. Before it makes any commitment to any Contracts or incurs any Liabilities that, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent aggregate with past practice; (m) (i) settle or compromise any material Tax claimall Contracts made and Liabilities incurred from and after the date hereof, audit or assessment for an amount materially create obligations that continue after the Closing Date in excess of the amount reserved Approved Prepaid Expenses plus $50,000, Seller shall consult with Buyer and shall not make any such commitment or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change incur any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or such Liability to which Buyer reasonably objects. (iv) enter into any material closing agreement, surrender in writing any right Not to claim a material Tax refund, offset or other reduction in Tax liability or consent undertake (nor permit to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (nbe undertaken) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoingactions specified in Section 2.8. (b) From the date hereof through the Closing Date, Seller and General Partner agree that Seller's affairs will be conducted in such a manner so that the representations and warranties of Seller contained herein shall, insofar as reasonably possible, continue to be true and correct on and as of the Closing Date as if made on and as of the Closing Date. (c) From the date hereof through the Closing Date, Seller will consult with Buyer prior to any renewal, amendment, extension or termination of, waiver of any material right under, or any failure to renew, any Transferred Contract and will not take any such action if Buyer objects thereto in writing.

Conduct of Business of Seller. During Except as contemplated by this Agreement, during the period from the date of this Agreement until the earlier hereof to occur of the Closing or the termination of this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”)Date, Seller shall, except as expressly contemplated by this Agreement or as required by applicable Law or with shall conduct the prior written consent of Buyer, conduct its business Business in the ordinary course of business consistent with past practice, practice and, to the extent consistent therewith, Seller shall with no less diligence and effort than would be applied in the absence of this Agreement, use its commercially reasonable efforts to preserve substantially intact its current business organizationoperations, keep available the services service of its current officers and employees, employees and preserve its present relationships with customers, suppliers, distributors, licensorslessors, licenseescreditors, employees, contractors and other Persons others having business relationships dealings with it, with the intention that its goodwill and ongoing businesses shall be unimpaired at the Closing Date. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement, between the date of this Agreement hereof and the Closing Date, Seller in connection with the Business shall not, without except with the prior written consent of Buyer: (a) amend Adopt a plan of complete or propose to amend partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Seller or any of its Charter Documentssubsidiaries; (b) acquireEither (i) incur or assume any long-term or short-term indebtedness or issue any debt securities, by mergerin each case, consolidation, acquisition except for borrowings under existing lines of stock or assetscredit in the ordinary course of business and consistent with past practices, or modify or agree to any amendment of the terms of any of the foregoing; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise, ) for the obligations of any other person except for obligations of subsidiaries of Seller incurred in the ordinary course of business or Person or division thereof or and consistent with past practices; (iii) make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance other person (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing customary loans or disposing of obsolete equipment or assets being replaced, advances to employees in each case in the ordinary course of business consistent with past practice); or (iv) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon; (dc) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except Except as may be required by applicable Law law or as contemplated by this Agreement, enter into, adopt or amend or terminate any bonus, profit sharing, special remuneration, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, health, life, or disability insurance, dependent care, severance or other employee benefit plan agreement, trust, fund or other arrangement for the benefit or welfare of any director, officer, employee or consultant in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including the granting of stock appreciation rights or performance units); (d) Except as expressly contemplated by this Agreement, enter into or amend any employment agreements, oral or written, increase the compensation payable or to become payable by Seller to any of the employees or consultants of the Business, or adopt or amend any employee benefit plan or arrangement, oral or written (including any amendment to any option plan maintained by Seller or the agreements thereunder), or increase the salaries or wage rates to the employees or consultants of the Business, in amounts not greater than and not with greater frequency than under prior Seller practices; (e) Terminate the employment of any employee of the Business or grant any severance or termination pay to any employee of the Business, except such terminations or payments expressly contemplated by this Agreement or in amounts not greater than under prior Seller Employee Plan practices or Material Contract: made pursuant to written agreements or other legally binding commitments disclosed to Buyer in writing and in effect on the date hereof; (f) Other than in the ordinary course of business and consistent with past practices, (i) enter into acquire, sell, lease, license, transfer or increase otherwise dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of One Thousand Dollars ($1,000) in the compensation, severance or benefits under any agreement with any Seller Employeeaggregate; (ii) accelerateenter into any exclusive license, make or grantdistribution, or permit any of their respective Affiliates to acceleratemarketing, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance sales or other compensation agreement; or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter intoacquire, amend sell, lease, license, transfer or terminate otherwise dispose of any Seller Employee Plan that will have an impact on Intellectual Property; (g) Except as may be required as a result of a change in applicable law or in generally accepted accounting principles, change any material accounting principle, practice or method used by the Business; ; (h) Revalue in any material respect any of its assets, including writing down the value of inventory or (iv) enter intowriting-off notes or accounts receivable, amend or terminate any collective bargaining agreementother than in the ordinary course of business and consistent with past practices; (i) Either (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or entity or division thereof or any equity interest therein; (ii) enter into any Contract with any Person contemplated by Section 4.27 in connection with contract or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, agreement other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practicepractice that would be material to Seller and its subsidiaries, taken as a whole; (iii) amend, modify or waive any material right under any Contract or any other material contract of Liabilities reflected Seller or reserved against any of its subsidiaries; (iv) breach or otherwise violate the material terms of any Contracts; (v) materially modify its standard warranty terms for its products or amend or modify any product warranties in effect as of the date hereof in any material manner that is adverse to Seller or any of its subsidiaries; (vi) authorize any new or additional capital expenditure or expenditures if any such expenditure or expenditures other than those listed in the capital budget which is set forth in Section 6.3(n) of Seller Disclosure Schedule; or (vii) authorize any new or additional manufacturing capacity expenditure or expenditures for any manufacturing capacity contracts or arrangements; (j) Make or revoke any tax election or settle or compromise any income tax liability, other than any such election or revocation that would not have a Material Adverse Effect on Seller; (k) Allow any insurance policy relating to the Balance Sheet Assets or subsequently incurred the Business to be amended or terminated without replacing such policy with a policy providing at least equal coverage, insuring comparable risks and issued by an insurance company financially comparable to the prior insurance company; (l) Fail to file any Tax returns when due (or, alternatively, fail to file for available extensions) or fail to cause such Tax returns when filed to be complete and accurate in all material respects other than any such failure that would not have a Material Adverse Effect on Seller; (m) Fail to pay any material Taxes or other material debts when due; (n) Commence any litigation or any binding dispute resolution process (other than in respect of any breach of or claim arising under this Agreement), or settle or compromise any pending or threatened suit, action, claim or other dispute that (i) relates to the transactions contemplated hereby, or (ii) the settlement or compromise of which would involve more than One Thousand Dollars ($1,000) or that would otherwise be material to Seller and its subsidiaries, taken as a whole, or relates to any Intellectual Property matters; (o) Except as set forth in Section 6.3(o) of Seller Disclosure Schedule, enter into any licensing, distribution, sponsorship, advertising or other similar contracts, agreements, or obligations which may not be canceled without penalty by Seller or its subsidiaries upon notice of 30 days or less or which provide for payments by or to Seller or its subsidiaries in an amount in excess of One Thousand Dollars ($1,000) over the term of the agreement; (p) Engage in any willful action with the intent to directly or indirectly adversely impact any of the transactions contemplated by this Agreement, other than pursuant to rights expressly conferred upon Seller under this Agreement; (q) Sell any inventory other than in the ordinary course of business and consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice;; or (r) terminate Take or modify agree in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, writing or otherwise make a commitment to do take any of the foregoingactions described in Sections 6.3(a) through 6.3(q) that it is prohibited from taking (and it shall use all commercially reasonable efforts not to take any action that would make any of the representations or warranties of Seller contained in this Agreement (including the Exhibits hereto) untrue or incorrect.

Conduct of Business of Seller. During Except as expressly provided in this Agreement, during the period from the date of this Agreement until and through the earlier to occur of the Closing or the termination of this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”)Effective Date, Seller shallshall conduct its business and operations in the usual and ordinary course and in a safe and prudent manner. To the extent consistent with such business, except Seller shall use all reasonable efforts to preserve intact its banking organization, to keep available the services of its officers and employees, and to preserve its relationships with customers, suppliers, and others having business dealings with it to the end that the goodwill and continuing business of Seller shall not be materially and adversely affected at the Effective Date. During said period, Seller agrees to do or refrain from doing (as expressly contemplated by this Agreement applicable) the following, or as required by applicable Law or with any thereof, unless the prior written consent of Buyerthe Buyer shall have been received: (a) Seller shall not sell, conduct transfer, or lease any of its properties or subject any of such properties or assets to a mortgage, pledge, security interest, or lien, except encumbrances of the character heretofore incurred in the ordinary and usual course of business. The reference to "properties" and assets" in this paragraph does not include Other Real Estate which is covered by Section 6.1(t). (b) Seller shall not make any expenditures of a capital nature in excess of $5,000, other than those for which it is committed on the date of this Agreement. (c) Except for Loans, Seller shall not enter into any contracts or commitments with a term in excess of twelve (12) months. (d) Seller shall not use any of its assets or properties, except for proper banking purposes. (e) Seller shall not modify, amend, cancel, or terminate any existing agreement, except in the ordinary and usual course of business. (f) Seller shall not acquire control over any other corporation, firm, or organization, or create any new subsidiaries, except in connection with foreclosures in the ordinary and usual course of business, or participate in any partnership, joint venture, or other business arrangement. (g) Seller shall not increase benefits or compensation of officers or employees or approve or implement bonuses or promotions except normal merit, length of service and promotional increases in the ordinary course of business and consistent with past practiceprior practices and with the prior approval of Buyer, andand at the Effective Date there shall be no contracts of employment with Seller which are not terminable at will, no agreements to pay deferred compensation or fringe benefits to current or former employees (or members of their families), and all accrued benefits under all pension plans shall be fully funded. (h) Seller shall maintain all of its existing insurance policies and bonds in full force and effect. (i) Seller shall refrain from applying for any new bank office. (j) Seller shall promptly file all tax returns for which filing deadlines occur prior to the extent consistent therewithEffective Date and shall appropriately accrue and pay, when due, all applicable federal, state, and local taxes and assessments which have been assessed or are payable prior to the Effective Date, including, but not limited to, ad valorem, sales, use, excise, franchise, income, real property and personal property taxes. (k) Seller shall use its commercially reasonable efforts continue to preserve substantially intact its business organization, keep available the services of its current officers pay all interest on deposits as such interest becomes due and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Closing Date, Seller shall not, without the prior written consent of Buyer: (a) amend or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case payable in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, through the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets;Effective Date. (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess Seller shall continue to accrue interest receivable and reflect collection of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, same in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on through the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice;Effective Date. (m) All debts of Seller with respect to the business conducted shall be paid in full as they fall due. A list of all payees who were paid by the Seller more than $1,000 during the month shall be provided to Buyer on a monthly basis within ten (i10) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess days after the end of the amount reserved or accrued on month. The list shall include the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver name of the limitation period applicable to any material Tax claim or assessment relating to Seller;payee, the amount of the payment and a brief description of the purpose of the payment. (n) Seller shall not loan funds, issue letters of credit, accept any deposits, or enter into any agreementcommitments for such loans, agreement in principle, letter letters of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person fromcredit, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, deposits except in the ordinary course of business consistent and upon substantially the same terms, including interest rates, maturities, collateral security, and other applicable terms as those prevailing at the time for comparable transactions. Seller shall not capitalize any interest on any existing loans or modify any terms of existing loans or commitments for loans. Seller shall not make any of the following loans or commitments without the prior approval of Buyer: (1) Any loan (except real estate loans) in excess of $50,000 to a new customer; (2) Any loan (except real estate loans) in excess of $100,000 to an existing customer; (3) Any construction loan; or (4) Any real estate loan in excess of $100,000 if the loan is to be kept by Seller and not sold in the secondary market. Buyer shall notify Seller within three business days after receipt of the necessary information from Seller. (o) Seller shall not merge or consolidate with past practice;any other entity or enter into any agreement therefor or for the sale of assets or acquire or agree to acquire any stock, business, properties, or assets of any other person, firm, association, corporation, bank, or other business organization. (p) Seller shall not cancel, without payment in full, any notes, loans, or other obligations receivable from any stockholder, officer or director of Seller, or from any corporation, partnership, or other entity in which any stockholder, officer or director of Seller has any direct or indirect interest. (q) Seller shall not, as defendant or obligor, settle any dispute which involves the payment of money or acceptance of liabilities in excess of $20,000. (r) terminate or modify in Seller shall not permit any material respectadverse change in the quality, composition, or fail to exercise renewal rights maturity of its assets, deposits or other liabilities, or in its business; provided, however, that the following factors shall not be considered in determining what shall constitute a materially adverse change in the quality or composition of assets, liabilities, or business of Seller: (i) changes in rates of return or yield received on various assets, which changes are caused by general money market fluctuations; and (ii) changes in interest rates paid by Seller with respect toto its source of borrowed funds, any material insurance policy; orincluding deposits, repurchase agreements, and federal funds purchased, which changes are caused by general money market fluctuations. (s) announce an intentionSeller shall not purchase any investment securities with maturities in excess of 2 years or sell any investment securities prior to maturity thereof; however, enter into any formal proposed purchase or informal agreementsale of such securities may be consented to orally by Buyer. (t) Seller shall not sell "other real estate owned" other than in compliance with banking regulations and any proposed sale must be consented to by Buyer. (u) Seller shall not take any action or refrain from taking any action that would have the effect of delaying scheduled examinations by regulators. (v) Seller shall not amend its Articles of Incorporation or Bylaws (if any), liquidate or otherwise make a commitment to do dissolve. (w) Seller shall not take any action or refrain from taking any action that would cause or have the effect of causing any of the foregoingrepresentations and warranties of Seller contained herein to not be true and correct on and as of the Effective Date. (x) Seller shall not accept brokered deposits. (y) Seller shall not incur any indebtedness with a maturity greater than 12 months for wholesale repurchase agreements or FHLB borrowings.

Conduct of Business of Seller. During Except for matters set forth in the Seller Disclosure Schedule or as otherwise permitted or contemplated by any provision of this Agreement or required by applicable Law or in connection with the Cash Dividend, the Distribution, the Retained Cash Amount and the Seller Liquidation, during the period from the date of this Agreement until the earlier hereof to occur of the Closing or the termination of this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”)Date, Seller shallwill, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent and will cause each of Buyerits Subsidiaries to, conduct its business operations, and not take any action except in the ordinary course of business consistent with past practicepractice and in accordance with applicable Law, and, to the extent consistent therewith, Seller shall use its commercially reasonable best efforts to preserve substantially intact its current business organizationorganizations, keep available the services of its current officers and employees, preserve its assets and properties in good repair and condition, maintain in full force and effect substantially the same levels of coverage of insurance with respect to its assets, operations and activities as are in effect on the date hereof, continue to make capital expenditures pertaining to its business in accordance with Seller’s capital budget existing on the date hereof and delivered to Parent, maintain the Seller Permits in full force and effect and shall timely file and prosecute any necessary applications for renewal of the Seller Permits, collect its receivables and preserve its present relationships with Governmental Authorities, customers, suppliers, distributors, licensors, licensees, distributors and other Persons others having material business relationships dealings with it. Without limiting Except for matters set forth in the generality of the foregoing, between the date Seller Disclosure Schedule or as otherwise permitted or contemplated by any provision of this Agreement or required by applicable Law and except for any actions in the ordinary course consistent with past practice or in connection with the Cash Dividend, the Distribution, the Retained Cash Amount and the Seller Liquidation, from the date hereof to the Closing Date, Seller shall will not, and will not permit any of its Subsidiaries to, without the prior written consent of BuyerParent, which consent will not be unreasonably withheld or delayed: (a) amend cause, adopt or propose any amendments to amend the Seller Articles or any charter documents of its Charter DocumentsSubsidiaries or the terms of any outstanding securities of Seller; (b) acquireauthorize for issuance, issue, sell, deliver, transfer, pledge, encumber or otherwise subject to any Lien (other than a Permitted Lien) or agree or commit to issue, sell, deliver, transfer, pledge, encumber or otherwise subject to any Lien (other than a Permitted Lien) (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities convertible into or exchangeable for any stock or any equity equivalents (including any stock options or stock appreciation rights) or make any payments based on the market price or value of shares or other capital stock of Seller, except for (i) the transfer or issuance of Seller Shares in connection with the exercise of Seller Stock Options or the vesting of Seller Restricted Shares, in each case outstanding on the date hereof or granted after the date hereof as permitted herein or (ii) the attachment of Seller Shares in connection with debt collection proceedings against certain customers of Seller; (c) (i) adjust, split, subdivide, combine, recapitalize or reclassify any shares of its capital stock; (ii) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock (other than dividends by wholly-owned Subsidiaries and ordinary dividends on Seller Shares); (iii) make any other actua l, constructive or deemed distribution in respect of any shares of its capital stock or otherwise make any payments to shareholders in their capacity as such; (iv) directly or indirectly redeem, purchase, repurchase, retire or otherwise acquire any of its securities or (v) grant any Person any right or option to acquire any shares of its capital stock; (d) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, acquisition restructuring, recapitalization or other reorganization of stock Seller; (e) except for letters of credit issued in connection with pre-payments by customers in an aggregate amount up to U.S.$5 million or assetsborrowings under existing lines of credit (or any replacement thereof) in an aggregate amount up to U.S.$5 million, (i) repurchase, repay, incur or assume any long-term or short-term debt or issue any debt securities; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise, ) for the obligations of any business or Person or division thereof or other Person; (iii) make any loans, advances or capital contributions to to, or investments in in, any Personother Person (other than to Subsidiaries of Seller); (iv) pledge or otherwise encumber shares of capital stock; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create any Lien (other than a Permitted Lien) thereupon; (cf) except (i) to satisfy contractual obligations existing on the date hereof, and (ii) for any retention or employment agreement, plan or arrangement entered into or established in connection with the transactions contemplated hereby and set forth in Section 5.01(f) of the Seller Disclosure Schedule, (A) terminate, establish, implement, adopt, amend, enter into, make any new, accelerate the vesting or payment of any existing grants or awards under, amend or otherwise modify any Seller Plan or other employment, severance, change in control, termination or other similar agreement or arrangements (including the funding arrangements in respect thereof) grant plan, policy or program that would be a Seller Plan if in effect as of the date hereof; (B) increase or commit to increase the commissions, compensation or benefits, including fringe benefits, payable or accrued or that would become payable by Seller or any of its Subsidiaries or accrue in respect to any employee, director or officer of Seller; (C) waive or commit to waive any debts due to Seller or any of its Subsidiaries from any employee or director of any such company; (D) grant any severance or termination pay to any present or former director, officer or employee of Seller or its Subsidiaries, (E) loan or advance any money or other property to any present or former director, officer or employee of Seller or its Subsidiaries or (F) grant any equity or equity-based awards. (g) (i) assign, transfer, sell, license, selllease (as lessor), lease sell and leaseback or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assetsof, or otherwise) or pledge, mortgage, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance)Lien, any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any amount of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business of its Subsidiaries’ property or assets, whether tangible or intangible, that is in excess of $50,000 material to Seller and its Subsidiaries, taken as a whole; or capital expenditures which are(ii) acquire any assets that are material, individually or in the aggregate, in excess of $150,000 for the Business to Seller and its Subsidiaries, taken as a whole; (h) except as may be required by applicable as a result of a change in Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensationin U.S. GAAP, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit change any of their respective Affiliates to acceleratethe accounting principles or practices used by it which would materially affect its reported consolidated assets, make liabilities or grant, any bonus (other than bonuses payable to employees results of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreementoperations; (i) enter into acquire (by merger, consolidation, or acquisition of stock or assets or otherwise) any Contract with corporation, partnership or other business organization or division thereof or any Person material equity interest therein or (ii) authorize or make any new capital expenditure or expenditures or investments exceeding U.S.$3 million in the aggregate other than (A) as contemplated by Section 4.27 Seller’s current capital expenditure budget or (B) necessary and advisable to maintain the assets of Seller and its Subsidiaries in connection with or affecting the Business or the Purchased Assetsgood working order; (j) make make, change or revoke any material change in Tax election, or settle or compromise any method of financial accounting principles material claim or practicesassessment or surrender any right to a material claim for a Tax refund, in each case except for case, if such action could reasonably be expected to increase the tax liability of Seller or any such change required by a change in GAAP Subsidiary or applicable Lawdecrease any Tax attribute of Seller or any existing Subsidiary on the Closing Date; (k) institutemake or revoke any material Tax election, settle, or settle or compromise any Action involving the payment of monetary damages by Seller of material Tax liability, or change (or make a request to any amount exceeding $50,000 in the aggregate, other than (itaxing authority to change) any Action brought against Buyer arising out material aspect of a breach or alleged breach its method of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assetsaccount ing for Tax purposes; (l) pay, discharge discharge, waive, settle or satisfy any claimmaterial claims, liability liabilities or obligation obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets), other than the payment, discharge or satisfaction, as required by their terms in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against effect on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practicedate hereof; (m) (i) settle or compromise any material Tax claim, audit pending litigation in which Seller or assessment any of its Subsidiaries is a named defendant for an a cash settlement amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included U.S.$1 million in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Selleraggregate; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership arrangement that limits or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of otherwise restricts Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliatesany successor thereto in any material respect or that would, after the Closing Date, limit or restrict Parent in any material respect from engaging or competing in any line of business or in any geographic area; (o) purchase a new, renew, or amend an existing, insurance policy; (p) amend in any material respect, terminate or cancel any Seller Material Contract or enter into any Contract that would be a Seller Material Contract if in effect on the date hereof; or (q) take, propose to take, or agree in writing or otherwise to take, any of the actions described in Sections 5.01(a) through 5.01(p) or any action which would (i) make any of the representations or warranties of Seller contained in this Agreement (A) which are qualified as to materiality, untrue or incorrect or (B) which are not so qualified, untrue or incorrect in any material respect or (ii) except as otherwise permitted by Section 6.04, reasonably be likely to result in any of the conditions to the consummation of the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand Agreement set forth in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoingArticle IX hereof not being satisfied.

Conduct of Business of Seller. During the period from the date of ----------------------------- this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with or the terms set forth in ARTICLE VIII Closing Date, Parent agrees to cause Affiliate and Seller, and Affiliate and Seller each agree (except to the “Interim Period”), Seller shall, except as extent expressly contemplated by this Agreement or as required consented to in writing by applicable Law or with Buyer), to carry on the prior written consent of Buyer, conduct its business Business in the usual, regular and ordinary course of business in substantially the same manner as heretofore conducted. Parent further agrees to cause Affiliate and Seller, and Affiliate and Seller each further agree, to pay their debts and Taxes when due subject to good faith disputes over such debts or Taxes, to pay or perform other obligations when due, and to use commercially reasonable efforts consistent with past practice, andpractice and policies to preserve intact the Business, to the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its current Seller's executive officers and employees, key employees engaged in the Business and to preserve its present Seller's relationships with customers, suppliers, distributors, licensors, licenseeslicensees of the Business, and other Persons others having business relationships dealings with itthe Business, to the end that Seller's goodwill and ongoing businesses shall be unimpaired at the Closing Date. Without limiting Any material Tax Returns filed by Parent, Affiliate or Seller during the generality of the foregoing, between period from the date of this Agreement and or the Closing DateDate shall, Seller shall not, without the prior written consent of Buyer: (a) amend or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 extent relating to the Business or the Purchased Assets, other than be prepared on a basis consistent with the paymentpast practice of Parent, discharge Affiliate or satisfactionSeller, as the case may be. Each of Parent, Affiliate and Seller agrees to promptly notify Buyer of any event or occurrence known to Parent, Affiliate or Seller and relating to the Business and not in the ordinary course of business consistent with past practicebusiness, and of Liabilities reflected or reserved against any event that is reasonably likely to have a Material Adverse Effect on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoing.

Conduct of Business of Seller. (a) During the period from the date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with or the terms Closing, subject to the limitations set forth below, Seller shall (except to the extent that Buyer shall otherwise consent in ARTICLE VIII (the “Interim Period”writing, which consent may not be unreasonably withheld), Seller shallwith respect to the Purchased Assets only, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Buyer, conduct carry on its business in the usual, regular and ordinary course of business consistent with past practicein substantially the same manner as previously conducted, to pay its Liabilities and Taxes when due (subject to good faith disputes over such debts or Taxes), and, to the extent consistent therewithwith the operation of the Purchased Assets in the Ordinary Course of Business, Seller shall use its commercially all reasonable efforts consistent with past practices and policies to preserve substantially intact its present business organization, keep available the services of its current present officers and employees, key employees and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons others having business relationships dealings with it. Without limiting the generality of the foregoing, between except as expressly contemplated by this Agreement or as disclosed on Section 7.1 of the Seller Disclosure Letter, during the period from the date of this Agreement and continuing until the Closing Date, Seller shall notearlier of the termination of this Agreement or the Closing, without the prior written consent of BuyerBuyer (which consent shall not be unreasonably withheld), Seller agrees, only as it relates to the Purchased Assets, that it shall not: (ai) amend or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise pledge, lease, dispose of (whether by way of mergerof, consolidation, sale of stock or assets, or otherwise) or pledgegrant, encumber or otherwise subject to any authorize the sale, pledge, disposition, grant or Encumbrance of the Purchased Assets except for (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing 1) sales of obsolete equipment or current assets being replaced, in each case in the ordinary course Ordinary Course of business consistent Business in connection with past practiceoperation of the Property, (2) sales of equipment and other non-current assets in the Ordinary Course of Business in connection with operation of the Property in an amount not to exceed individually or in the aggregate the amounts set forth on Section 7.1(a)(i)(1) of each Seller Disclosure Letter or (3) other sales which do not exceed, either individually or in the aggregate, the amounts set forth on Section 7.1(a)(i)(2) of the Seller Disclosure Letter; (dii) incur any indebtedness for borrowed money Liabilities, except in the Ordinary Course of Business; (iii) modify, amend or issue terminate the Ground Lease or any debt securities of the Material Assumed Contracts or assumewaive, guarantee release or endorseassign any rights or claims, except in the Ordinary Course of Business or as required by applicable Law; (iv) except in the Ordinary Course of Business, subject the Purchased Assets to a Lien or Encumbrance, other than Permitted Encumbrances; (v) fail to maintain the existing insurance coverage of all types relating to the Purchased Assets (however, in the event any such coverage shall be terminated or lapse, to the extent available at reasonable cost, Seller may procure substantially similar substitute insurance policies which in all material respects are in at least such amounts and against such risks as are currently covered by such policies); (vi) award or increase any bonuses, salaries, or otherwise become responsible forother compensation, except in the obligations Ordinary Course of Business, to any PersonProperty Employee, or make enter into any loans employment, severance, or advancessimilar Contract with any Property Employee; (vii) enter into or terminate or provide notice of termination of (i) any license, in each case distributorship, dealer, sales representative, joint venture, credit, or similar agreement, or (ii) any Contract or transaction involving a total remaining commitment by or to Seller in excess of $50,000 and affecting the Business or the Purchased Assets50,000, except for any indebtedness that unless such Contract is an Excluded Liabilitycancelable upon thirty (30) days notice; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) that Seller may enter into the following agreements without any Material Contract; consent from Buyer: (fA) amend, waive, modify in any material respect or in advance booking contract which does not involve a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any room block commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, one thousand (1000) room nights; and (B) purchase orders in the aggregate, in excess Ordinary Course of $150,000 for the Business taken as a whole;Business. (hviii) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase other than in the compensationOrdinary Course of Business, severance or benefits under any agreement with any Seller Employee; (ii) acceleratesell, make or grantlease, or permit otherwise dispose of any of their respective Affiliates to accelerate, make material asset or grant, any bonus (other than bonuses payable to employees property of Seller which shall not exceed $150,000 in the aggregate)or mortgage, severance pledge, or impose any lien or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact encumbrance on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method asset or property of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (nix) enter into any agreement, agreement fail to maintain inventory levels (both consumables and non-consumables) in principle, letter of intent, memorandum of understanding or similar Contract such quality and quantity as is substantially consistent with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or Seller’s past practices at the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except Property and in the ordinary course Ordinary Course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policyBusiness; or (sx) enter into a Contract to do any of the foregoing, or to authorize or announce an intention, enter into any formal or informal agreement, or otherwise make a commitment intention to do any of the foregoing. (b) It is agreed and understood that if Buyer does not grant or deny consent to a proposed action within two (2) business days of its receipt of a second written request by Seller to take such action, Buyer shall be deemed to have consented to the taking of such action by Seller notwithstanding any other provision of Section 7.1(a) hereof.

Conduct of Business of Seller. During the period from the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”), Seller shall, except a) Except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Buyer, prior to the Closing, Seller shall conduct its business the operations of the Business only in the ordinary course of business consistent with past custom and practice, and, to the extent consistent therewith, and Seller shall will use its commercially reasonable best efforts to preserve substantially intact its business organizationthe Business and the Assets, to keep available to the Business the services of its current the present officers and employeeskey employees of Seller, and to preserve its present relationships with the good will of customers, suppliers, distributors, licensors, licensees, and all other Persons persons having business relationships with it. Without limiting Seller relating to the generality of Business through the foregoingClosing. (b) Except as otherwise contemplated by this Agreement, between prior to the date of this Agreement and the Closing DateClosing, Seller shall not, without the prior written consent of Buyer, take any of the following acts with respect to the Business: (ai) increase the compensation or fringe benefits payable or to become payable to employees or independent contractors of the Business working primarily at a store location (except for customary increases consistent with past custom and practice), or pay any benefit not required by any existing Employee Plan or Compensation Arrangement or grant any severance or termination pay to (except pursuant to existing Employee Plans or Compensation Arrangements), or enter into, review, terminate, amend, or waive any material provision of any employment or severance agreement with, any such employee or independent contractor of the Business or establish, adopt, enter into, or amend any collective bargaining agreement, employment agreement, termination agreement, personal services agreement, Employee Plan, or propose to amend its Charter DocumentsCompensation Arrangement; (bii) acquire, sell, lease, license, transfer, pledge, encumber, grant, or dispose of (whether by merger, consolidation, acquisition of stock or assetspurchase, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assetssale, or otherwise) or pledgeany assets relating to the Business, encumber or otherwise subject to including any Encumbrance Asset (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing acquisition and sale of inventory or disposing the disposition of obsolete used or excess equipment or assets being replacedand the purchase of supplies and equipment, in each case in the ordinary course of Seller’s business consistent with past custom and practice); (diii) incur change any indebtedness for borrowed money accounting policies or issue any debt securities or assumeprocedures, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured than as required by any interest of any kind in the Purchased AssetsGAAP; (eiv) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contractrelease, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) instituteassign, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregatematerial rights, other than (i) any Action brought against Buyer arising out of a breach claims or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 litigation relating to the Business or any Asset; (v) take any action that would cause any representation or warranty set forth in Article 4 to be untrue if made following the Purchased Assetstaking of such action; (vi) enter into any Contract that would be an Assumed Contract, other than the payment, discharge or satisfaction, except for any Contract entered into in the ordinary course of Seller’s business consistent with past practice, of Liabilities reflected custom and practice under which the consideration payable or reserved against on the Balance Sheet receivable by Seller does not exceed $20,000 per year per Contract or subsequently incurred $50,000 per year in the aggregate for all such Contracts or amend or terminate any existing Contract; (vii) make any material increase in the size or change the composition of the workforce of the Business; or (viii) voluntarily recognize any union or other collective bargaining representative as the collective bargaining representative for any of the employees of the Business. (c) Except as otherwise contemplated by this Agreement, prior to the Closing, Seller shall: (i) maintain all the Assets in good operating condition (ordinary course wear and tear excepted), with inventories of business spare parts and expendable supplies being maintained at levels consistent with past practice; (m) (i) settle practices, and make all repairs or compromise replacements necessary to restore any material Tax claim, audit or assessment for an amount materially Assets to the condition represented in excess Article 4 of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (pii) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IPmaintain the existing insurance policies in full force and effect; (qiii) accelerate maintain the collection books and records of or discount any Accounts Receivable, delay Seller in accordance with past practices; (iv) furnish to Buyer within twenty days after the payment end of Liabilities each month financial statements for the month just ended containing balance sheets and statements of income and cash flow for such period that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection shall comply with the Businessrepresentations set forth in Section 4.7; (v) comply in all material respects with all laws, except rules, and regulations and with all Contracts and keep in full force and effect all Licenses; (vi) pay all of the ordinary course obligations and liabilities of business the Business on a timely basis consistent with past practice;custom and practice and cause all accounts payable of the Business to be paid to current terms as of the Closing; and (rvii) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any preserve the corporate existence of the foregoingSeller.

Conduct of Business of Seller. During (a) Except (i) as required by applicable Law, Order or a Governmental Body, (ii) as required, limited or prohibited by the Bankruptcy Court, the Bankruptcy Case or the Bankruptcy Code or Seller’s debtor-in-possession financing or use of cash collateral, as the case may be, (iii) as expressly contemplated, required or permitted by this Agreement or the other Transaction Agreements, (iv) to the extent related to an Excluded Asset or an Excluded Liability or (v) as set forth on Schedule 6.1, during the period from the date of this Agreement until the Closing (or such earlier to occur of the Closing or the termination of date and time on which this Agreement is terminated pursuant to Article VIII), unless Purchaser otherwise consents in accordance with the terms set forth in ARTICLE VIII writing (the “Interim Period”such consent not to be unreasonably withheld, delayed or conditioned), Seller shall, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Buyer, conduct shall operate its business in the ordinary course of business consistent with past practice, and, to the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its current officers and employeesOrdinary Course, and preserve its present relationships with customersshall not: (i) sell or lease to any Person, suppliersin a single transaction or series of related transactions, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality any of the foregoingAcquired Assets, between except (A) Ordinary Course dispositions of obsolete, surplus or wornout assets or assets that are no longer used or useful in the conduct of the business of Seller and (B) other sales and leases in the Ordinary Course; (ii) grant any Encumbrance (other than Permitted Encumbrances) on any material Acquired Assets other than to secure indebtedness under the DIP Credit Agreement and indebtedness or other obligations in existence at the date of this Agreement (and the Closing Date, Seller shall not, without the prior written consent of Buyer:required to be so secured by their terms); (aiii) amend take any action that is not consistent with Seller’s operation of its business in the Ordinary Course in any material respects; or (iv) authorize any of, or propose commit or agree, in writing or otherwise, to amend its Charter Documents;take any of, the foregoing actions. (b) acquireNothing contained in this Agreement is intended to give Purchaser or its Affiliates, by mergerdirectly or indirectly, consolidationthe right to control or direct Seller’s or its Subsidiaries’ operations or business prior to the Closing, acquisition and nothing contained in this Agreement is intended to give Seller, directly or indirectly, the right to control or direct Purchaser’s or its Subsidiaries’ operations. Prior to the Closing, each of stock or assetsPurchaser and Seller shall exercise, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 terms and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach conditions of this Agreement by Buyer Agreement, complete control and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of supervision over its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoing.and its Subsidiaries’ respective operations. 38760-00003/4781767.1

Conduct of Business of Seller. (a) During the period from the execution date of this Agreement (the “Execution Date”) and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with Section 7.4 or the terms set forth in ARTICLE VIII (the “Interim Period”), Seller shallClosing, except (1) for any limitations on operations imposed by the Bankruptcy Court or the Bankruptcy Code, (2) as required by applicable Law, (3) as otherwise expressly contemplated by this Agreement or as required by applicable Law or (4) with the prior written consent of Buyerthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Seller shall: (i) conduct its business the Business and operate and maintain the Purchased Assets in the ordinary course Ordinary Course of Business, including maintaining accounting methods; (ii) use its commercially reasonable good faith efforts to (x) preserve the goodwill of and relationships with Governmental Bodies, customers, Clients, suppliers, vendors, lessors, licensors, licensees, contractors, distributors, agents, Employees and others having business consistent dealings with past practice, the Business; and (y) comply with all applicable Laws and, to the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available their assets (tangible and intangible). (b) During the services of its current officers period from the Execution Date and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting continuing until the generality earlier of the foregoing, between the date termination of this Agreement and in accordance with Section 7.4 or the Closing DateClosing, Seller shall notexcept (1) for any limitations on operations imposed by, without or actions required by, the Bankruptcy Court or the Bankruptcy Code, (2) as required by applicable Law, (3) as otherwise expressly contemplated by this Agreement or (4) with the prior written consent of Buyerthe Purchaser (such consent not to be unreasonably withheld, conditioned or delayed and, in the event that Seller requests Purchaser’s consent in writing and Purchaser does not provide a response within five (5) Business Days after such request, Purchaser shall be deemed to have provided their prior written consent to such request), the Seller shall not: (ai) amend mortgage, pledge or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (eii) cancel or compromise any debt or material claim or waive or release any material right of the Seller that constitutes a Purchased Asset or otherwise relates to the Business; (iii) except with the prior written consent of Purchaser, such consent not to be unreasonably withheld: (A) enter into any Material Contract; (f) amend, waive, modify in new Contract or renew any material respect existing Contract requiring payments by or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is Seller in excess of $50,000 20,000.00 over the thirty day period immediately following the execution thereof and (B) cancel, terminate, amend, modify, supplement or capital expenditures which arerescind any Material Contract or any terms of any Material Contract, in the aggregate, in excess of $150,000 except for the Business taken as purpose of effecting any changes in applicable Law or implementing regulatory requirements or in response to a wholebreach or default by the other party thereto; (hiv) except as may be required by applicable Law or abandon any rights under any Seller Employee Plan Material Contract or breach any Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policyContracts; or (sv) announce an intentionmake or rescind any material Tax election or take any material Tax position (unless required by Law) or file any amended Tax Return or change its fiscal year or financial or Tax accounting methods, enter into any formal policies or informal agreementpractices, or otherwise make a commitment settle any tax liability (“Tax Liability”), except in each case as would not reasonably be expected to do any of result in Liability to the foregoingPurchaser or the Business.

Conduct of Business of Seller. (a) During the period from the date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with and the terms Closing, subject to the limitations set forth below, Seller shall (except to the extent that Buyer shall otherwise consent in ARTICLE VIII (the “Interim Period”writing, which consent may not be unreasonably withheld or delayed), Seller shall, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Buyer, conduct carry on its business in the Ordinary Course of Business, maintain the Purchased Assets in good working order and condition and in a state of repair consistent with the Ordinary Course of Business and the state of repair and condition on the date hereof, ordinary course of business wear and tear excepted, comply with all applicable Laws and Seller Permits in all material respects, pay its Liabilities and Taxes when due (subject to good faith disputes over such Liabilities or Taxes), and use all commercially reasonable efforts consistent with past practice, and, to the extent consistent therewith, Seller shall use its commercially reasonable efforts practices and policies to preserve substantially intact its present business organization, keep available the services of its current present officers and employees, key employees and preserve its present relationships with customers, employees, suppliers, distributors, licensors, licensees, and other Persons others having business relationships dealings with it. Without limiting the generality of the foregoing, between except as expressly contemplated by this Agreement or as disclosed on Section 7.1 of the Seller Disclosure Letter, during the period from the date of this Agreement and continuing until the Closing Date, Seller shall notearlier of the termination of this Agreement and the Closing, without the prior written consent of BuyerBuyer (which consent shall not be unreasonably withheld or delayed), Seller agrees that it shall not: (ai) amend or propose to amend its Charter Documents; (b) acquiresell, by mergerpledge, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transferlease, license, selldispose of, lease or otherwise dispose of (whether by way of mergerabandon, consolidation, sale of stock or assets, or otherwise) or pledgegrant, encumber or otherwise subject authorize or permit the sale, pledge, disposition, grant or Encumbrance of the Purchased Assets except for (1) sales of current assets in the Ordinary Course of Business in connection with operation of the Property, or (2) sales of equipment and other non-current assets in the Ordinary Course of Business in connection with operation of the Property in an amount not to exceed, individually or in the aggregate, the amounts set forth on Section 7.1(a)(i)(2) of the Seller Disclosure Letter; (ii) incur any Encumbrance Liabilities, except in the Ordinary Course of Business; (iii) materially violate, materially modify, materially amend or terminate the Existing Ground Lease (other than a Permitted Encumbranceas set forth in Section 7.21), the Amended Ground Lease or any Purchased Assets; provided that of the foregoing shall not prohibit Seller from transferringAssumed Contracts or waive, sellingrelease or assign any material rights or claims, leasing or disposing of obsolete equipment or assets being replaced, in each case except in the ordinary course Ordinary Course of business consistent with past practiceBusiness or as required by applicable Law; (div) incur any indebtedness for borrowed money cause or issue any debt securities or assume, guarantee or endorsepermit the Purchased Assets to be subjected to, or otherwise become responsible forpermit to exist on the Purchased Assets, any Lien or Encumbrance, other than Permitted Encumbrances; (v) fail to maintain the obligations existing insurance coverage of all types relating to the Purchased Assets (however, in the event that any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies which in all material respects are in at least such amounts and against such risks as are currently covered by such policies); (vi) award or increase any bonuses, salaries or other compensation, except in the Ordinary Course of Business, to any Employee that is not an officer of Seller, or enter into any employment, severance, or similar Contract with any Employee that is not an officer of Seller; (vii) make any loans to any of its officers, directors, employees, affiliates, agents or consultants or made any change in its existing borrowing or lending arrangements for or on behalf of any Personof such persons, whether pursuant to an employee benefit plan or otherwise; (viii) except pursuant to its existing terms, grant, issue, accelerate, pay, accrue or agree to pay or make any loans accrual or advancesarrangement for payment of salary or other payments or benefits pursuant to, in each case or adopt any new, or amend any existing, Seller Benefit Plan; (ix) enter into or terminate or provide notice of termination of (1) any license, distributorship, dealer, sales representative, joint venture or similar agreement, or (2) any Contract or transaction, or series of related contracts or transactions which (v) involve(s) a total remaining commitment by or to Seller in excess of Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars ($50,000 100,000), (w) expire(s) after the date which is twelve (12) months following the date hereof, (x) regardless of length, involve(s) aggregate consideration in excess of Two Hundred Thousand United States Dollars ($200,000) per year, (y) is or are between Seller and affecting any Affiliates of Seller, or (z) contain(s) any restrictions on the Business or the Purchased Assetsoperations of the Property following the Closing unless such Contract, except transaction or series of related contracts or transactions is or are cancelable upon thirty (30) days’ notice or less without cause and without payment of any consideration for any indebtedness that is an Excluded Liabilityearly termination; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind that Seller may enter into purchase orders in the Purchased AssetsOrdinary Course of Business without any consent from Buyer; (ex) enter into any Material Contractfail to maintain inventory levels (both consumables and non-consumables) in such quality and quantity as is substantially consistent with Seller’s past practices at the Property and in the Ordinary Course of Business; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (jxi) make any material change changes to advertising or marketing activities relating to the Property or the Business, other than in the Ordinary Course of Business; (xii) terminate any method of financial accounting principles the Employees, except in the Ordinary Course of Business or practices, in each case except for any such change as required by a change in GAAP or applicable Law; (kxiii) institute, settle, transfer any of the Employees to any property or compromise any Action involving the payment of monetary damages business owned or operated by Seller of any amount exceeding $50,000 or Seller’s Affiliates (other than the Property); (xiv) authorize or make capital expenditures in the aggregate, other than aggregate in excess of the amount set forth on Section 7.1(a)(xiv) of the Seller Disclosure Letter (excluding (i) any Action brought against Buyer arising out the purchase of a breach or alleged breach of this Agreement by Buyer Permitted Additional Gaming Machines and (ii) the settlement capital expenditures required to be made by Section 7.1(a)(xv)); (xv) fail to make capital expenditures: (a) to purchase and install the gaming machines described in Section 7.1(a)(xv) of claimsthe Seller Disclosure Letter or (b) required to be made under any Gaming Law or by any Gaming Authority; provided, liabilities that if Seller fails to make any such expenditures referred to in the immediately preceding clause (a) or obligations fully reserved against on (b), the Balance Sheet; provided Purchase Price payable to Buyer pursuant to Section 2.2 hereof shall be reduced by an amount equal to the difference between (x) the amount that Seller shall not settle should have expended pursuant to this Section 7.1(a)(xv) and (y) the amount that Seller in fact spent. (xvi) close or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on shut down the Business or the Purchased AssetsProperty, except for such closures or shutdowns which are (1) required by action, order, writ, injunction, judgment or decree or otherwise required by Law, or (2) due to acts of God or other force majeure events; (lxvii) paydelete, discharge damage or satisfy erase any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased AssetsProperty Specific Data, other than the payment, discharge or satisfaction, in the ordinary course Ordinary Course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practiceBusiness; (mxviii) (i) settle or compromise fail to file any material Tax claim, audit or assessment Return for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Pre-Closing Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respectPeriod when due, or fail to exercise renewal rights with respect to, pay any material insurance policyTaxes required to be paid unless such Tax is described in Section 7.1(a)(xviii) of the Seller Disclosure Letter as being contested in good faith; or (sxix) agree, whether or not in writing, to do any of the foregoing, or to authorize or announce an intention, enter into any formal or informal agreement, or otherwise make a commitment intention to do any of the foregoing.

Conduct of Business of Seller. 6.1.1 During the period from the date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement in accordance with pursuant to Section 8.1 hereof or the terms Closing, subject to the limitations set forth in ARTICLE VIII (the “Interim Period”)below, Seller shall, and with respect to the Purchased Assets only, Seller Parent shall and shall cause Seller Parent’s other subsidiaries to (in each case, except as expressly otherwise contemplated by this Agreement or as Agreement, required by applicable Law Law, or with to the prior written extent that Buyer shall otherwise consent of Buyerin writing, conduct which consent may not be unreasonably withheld, delayed or conditioned), carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted in calendar years 2006 through 2009 (including keeping and maintaining amounts of business consistent with past practicesupplies and inventory), to pay its debts and Taxes when due (subject to good faith disputes over such debts and Taxes), and, to the extent consistent therewithwith the operation of the Purchased Assets in the Ordinary Course of Business, Seller shall use its commercially reasonable efforts consistent with past practices and policies in effect during calendar years 2006 through 2009 to preserve substantially intact its present business organization, keep available the services of its current officers and employees, present key employees and preserve its present relationships with customers, supplierssuppliers and distributors (including not referring customers to the Other Properties, distributorsprovided that Seller and Seller Parent shall have the right to continue marketing and promoting the Property and the Other Properties together in the Ordinary Course of Business and providing existing services and benefits, licensorsincluding “Xxxxx One Card” benefits, licensees, and other Persons having business relationships with itto customers of the Property who visit the Other Properties. Without limiting the generality of the foregoing, between except as contemplated by this Agreement, required by applicable Law or as disclosed on Section 6.1 of the Seller Disclosure Letter, during the period from the date of this Agreement and continuing until the Closing Date, Seller shall notearlier of the termination of this Agreement pursuant to Section 8.1 hereof or the Closing, without the prior written consent of BuyerBuyer (which consent shall not be unreasonably withheld, delayed or conditioned), Seller and Seller Parent agree, only as it relates to the Purchased Assets, that they shall not: (a) amend or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, A. sell, lease pledge, lease, license or otherwise dispose of (whether by way or grant any of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for (1) dividends or distributions of cash or cash equivalents, (2) payments of cash, and sales or other transfers of current assets, in the Ordinary Course of Business to Persons other than Seller Parent or Affiliates of Seller or Seller Parent in connection with the operation of the Property (provided that Seller may pay intercompany payables on account of (i) services rendered by Seller Parent or Affiliates of Seller or Seller Parent provided for the benefit of Seller in the Ordinary Course of Business and (ii) Personal Property purchased by Seller Parent or Affiliates of Seller or Seller Parent on behalf of Seller in the Ordinary Course of Business), (3) sales of equipment, personal property and other non-current assets in the Ordinary Course of Business to Persons other than Seller Parent or Affiliates of Seller or Seller Parent in an amount not to exceed, individually or in the aggregate, $100,000 (provided that (x) the net proceeds of any such sales are reinvested by Seller in other assets that are, or will become, Purchased Assets hereunder and (y) in the case of any individual asset having a value of more than $10,000, the sale of such asset and the reinvestment of the proceeds generated therefrom are approved by Buyer, such approval not to be unreasonably withheld), and (4) leases and rentals in the Ordinary Course of Business, which, in each case, shall be subject to Section 6.1.1.G; B. except for Liens securing indebtedness referred to in clause 6.1.1.C(C) below, subject the Purchased Assets to a Lien, other than Permitted Encumbrances and Mechanics’ Liens; C. incur (with respect to Seller), or allow Seller to incur (with respect to Seller Parent), any indebtedness that is an Excluded Liabilityfor borrowed money, except (A) in the Ordinary Course of Business though not to exceed, individually or in the aggregate, $1,000,000, (B) indebtedness among Seller and Seller Parent or its Affiliates, and (C) indebtedness under any credit facility of Seller Parent or its Affiliates and in respect of guarantees under the 2010 Credit Agreement; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse that all Liens with regard to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify indebtedness described in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC DocumentsA), (iiB) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, and (iiiC) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Sellermust be released at Closing; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding D. modify or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify amend in any material respect, or terminate, any of the Assumed Contracts, or waive, release or assign any material rights or claims, except in the Ordinary Course of Business (provided, however, that (i) the term of any Assumed Contract may be extended by Seller, so long as (x) such Assumed Contract, as so extended, does not expire later than the Closing Date or (y) such Assumed Contract is terminable after the Closing Date by Buyer’s giving no greater than 30 days’ notice, without the payment of any consideration for early termination, at Buyer’s sole discretion, and (ii) in the case of any contract relating to the Property and also to one or more of the Other Properties, Seller shall be permitted to modify or amend such contract to the extent reasonably necessary to allow for the assignment to (and assumption by) Buyer of such contract with respect to the Property, as contemplated by this Agreement, so long as the economic terms of such agreement applicable to the Property are not materially modified); E. fail to exercise maintain all existing insurance coverage relating to the Purchased Assets (however, in the event any such coverage shall be terminated or lapse, to the extent available at reasonable cost, Seller may procure substantially similar substitute insurance policies which in all material respects are in at least such amounts and against such risks as are currently covered by such policies); F. award or increase any bonuses, salaries, or other compensation, except as required by an existing Contract or arrangement or as set forth on Section 6.1 of the Seller Disclosure Letter, to any Property Employee, or enter into any employment, severance or similar Contract with any Property Employee (provided, however, that Seller shall be permitted in its discretion to establish retention and/or severance arrangements for Property Employees after consultation with Buyer regarding same, so long as Buyer has no liability for any such retention and/or severance arrangements and such arrangements do not encourage the Property Employees to terminate their employment at the Property or become employed at the Other Properties); G. enter into any Contract to be assumed by Buyer under this Agreement which (A) expires later than the Closing Date (unless such Contract is terminable after the Closing Date by Buyer’s giving no greater than 30 days’ notice, without the payment of any consideration for early termination, at Buyer’s sole discretion); (B) involves aggregate consideration during the remaining term thereof in excess of $0; or (C) is between Seller and any Affiliate of Seller; provided, however, that Seller may enter into the following Contracts without any consent from Buyer: (1) any reservations, advance booking contracts, room allocation agreements and banquet facility and service agreements entered into in accordance with Section 6.12.1 and at market rates in the Ordinary Course of Business; and (2) any purchase order in the Ordinary Course of Business for which Buyer will not have any liability on or after the Closing. Anything herein or elsewhere to the contrary notwithstanding, Seller may enter into or modify any collective bargaining agreement, including the Collective Bargaining Agreements, without any consent from Buyer, provided (i) doing so is required by applicable Law, (ii) not doing so would result in Seller and/or Seller Parent breaching another material agreement to which either Seller or Seller Parent is a party, and/or (iii) Seller Parent, in its good faith judgment, reasonably determines that failure to modify the Collective Bargaining Agreements (A) could result in labor unrest at the Property or the Other Properties and/or (B) could negatively impact in a material respect Seller Parent’s relationship with any of the unions at the Other Properties (provided that any such Collective Bargaining Agreement is substantially the same as the Collective Bargaining Agreement that covers the Property as of the date hereof). Further, Seller shall request that Buyer be permitted to attend any collective bargaining negotiation session with union representatives where the Collective Bargaining Agreements will be negotiated; H. except as set forth in Section 6.1 of the Seller Disclosure Letter, transfer any Personal Property or Property Employee from the Property to any other location of Seller Parent (except for Personal Property transferred in the Ordinary Course of Business and having an aggregate value not greater than $10,000); I. subject to Section 6.15, fail to maintain the Property in a good condition of repair in all material respects consistent with the condition of the Property during calendar years 2006 through 2009, ordinary wear and tear excepted; J. modify or rescind any of the material transferable Seller Permits to be transferred to Buyer at the Closing, except modifications in the Ordinary Course of Business, or fail to use good faith efforts to obtain any renewal rights with respect toor extension, as may be required by Law, of any material insurance policy; orSeller Permits in the Ordinary Course of Business; (s) announce an intentionK. allow any Hazardous Materials to be Released at, in, on or under the Property, except for such quantities or types of Hazardous Materials that are reasonably required for the operation of the Property and in compliance with Environmental Law; L. except as otherwise expressly permitted or required by this Agreement, enter into any formal or informal agreement, transactions with any Affiliate of Seller (other than consistent with past practice as described in the Seller Disclosure Letter); M. take any action to (A) remove customers from or otherwise make modify the Marina Database, other than routine removals or modifications consistent with past practices, including, without limitation changes to customer information listed on the Marina Database and the addition of customers to the Marina Database or (B) materially modify the marketing (including advertising in any format), promotion, pricing, expense allocation or facilities of the Property as they relate to the Other Properties or of the Other Properties as it relates to the Property, where such modification provides a commitment disproportionate benefit to the Other Properties; N. enter into a Contract to do any of the foregoingforegoing prohibited by this Section 6.1.1, or authorize or announce any intention to do any of the foregoing prohibited by this Section 6.1.1; O. fail to implement and maintain a marketing, entertainment and/or promotional plan (the “Marketing Plan”) for the Property that is substantially consistent with the Marketing Plan attached hereto as Exhibit M; X. xxx off or terminate any Property Employee other than for cause; or X. xxxxx, award or give away “free play” except pursuant to the Marketing Plan or otherwise in the Ordinary Course of Business. 6.1.2 If Buyer does not grant or deny consent to a proposed action within five Business Days of its receipt of a written request by Seller to take such action, Buyer shall be deemed to have consented to the taking of such action by Seller notwithstanding any other provision of Section 6.1.1 hereof. 6.1.3 Notwithstanding anything herein to the contrary (including the restrictions set forth in Section 6.1.1 hereof), nothing herein shall preclude Seller from taking any action that is required by Law or any Governmental Entity in order to consummate the transactions contemplated hereby.

Conduct of Business of Seller. During the period from the date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement or the Closing Date, Seller agrees (except to the extent that Buyer shall otherwise consent in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”writing), Seller shall, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Buyer, conduct to carry on its business in the usual, regular and ordinary course of business consistent in substantially the same manner as heretofore conducted, to pay its debts and Taxes when due, maintain insurance against loss or damage to the Assets and such other insurance with past practicerespect to the Assets as heretofore been maintained, to pay or perform other obligations when due, and, to the extent consistent therewithwith such business, Seller shall use its commercially all reasonable efforts consistent with past practice and policies to preserve substantially intact its Seller's present business organizationorganizations, keep available the services of its current present officers and employees, key employees and preserve its present their relationships with customers, suppliers, distributors, licensors, licensees, and other Persons others having business relationships dealings with it. Without limiting , all with the generality goal of preserving unimpaired the foregoingAssets, between including without limitation, Seller's goodwill and the date of this Agreement and Business at the Closing Date. Seller shall promptly notify Buyer of any event or occurrence or emergency not in the ordinary course of business of Seller, and any event which could have a Material Adverse Effect. Except as expressly contemplated by this Agreement, Seller shall not, without the prior written consent of Buyer:Buyer (which shall be given, or reasonably withheld, in the cases of clauses (f), (g) and (h) below, within one business day after receipt of written request therefor): (a) amend Enter into any commitment or propose to amend its Charter Documents; (b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person; (c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall transaction not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practicebusiness; (d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any of Seller’s rights; (g) authorize or make any commitment with respect to any single capital expenditure for the Business that is in excess of $50,000 or capital expenditures which are, in the aggregate, in excess of $150,000 for the Business taken as a whole; (h) except as may be required by applicable Law or under any Seller Employee Plan or Material Contract: (i) enter into or increase the compensation, severance or benefits under any agreement with any Seller Employee; (ii) accelerate, make or grant, or permit any of their respective Affiliates to accelerate, make or grant, any bonus (other than bonuses payable to employees of Seller which shall not exceed $150,000 in the aggregate), severance or other compensation or modify the rate or terms of compensation, severance or benefits of any Seller Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that will have an impact on the Business; or (iv) enter into, amend or terminate any collective bargaining agreement; (i) enter into any Contract with any Person contemplated by Section 4.27 in connection with or affecting the Business or the Purchased Assets; (j) make any material change in any method of financial accounting principles or practices, in each case except for any such change required by a change in GAAP or applicable Law; (k) institute, settle, or compromise any Action involving the payment of monetary damages by Seller of any amount exceeding $50,000 in the aggregate, other than (i) any Action brought against Buyer arising out of a breach or alleged breach of this Agreement by Buyer and (ii) the settlement of claims, liabilities or obligations fully reserved against on the Balance Sheet; provided that Seller shall not settle or agree to settle any Action which settlement involves a conduct remedy or injunctive or similar relief or has a restrictive or reputational impact on the Business or the Purchased Assets; (l) pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $50,000 relating to the Business or the Purchased Assets, other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice, of Liabilities reflected or reserved against on the Balance Sheet or subsequently incurred in the ordinary course of business consistent with past practice; (m) (i) settle or compromise any material Tax claim, audit or assessment for an amount materially in excess of the amount reserved or accrued on the Balance Sheet (or most recent consolidated balance sheet included in the Seller SEC Documents), (ii) make or change any material Tax election, change any annual Tax accounting period, or adopt or change any method of Tax accounting, (iii) amend any material Tax Returns or file claims for material Tax refunds, or (iv) enter into any material closing agreement, surrender in writing any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to Seller; (n) enter into any agreement, agreement in principle, letter of intent, memorandum of understanding or similar Contract with respect to any joint venture, strategic partnership or alliance; (o) except in connection with actions permitted by Section 6.03 hereof, take any action to exempt any Person from, or make any acquisition of securities of Seller by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Seller with respect to a Takeover Proposal or otherwise, except for Buyer or any of its Subsidiaries or Affiliates, or the transactions contemplated by this Agreement; (p) abandon, allow to lapse, sell, assign, transfer, grant any security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the collection of or discount any Accounts Receivable, delay the payment of Liabilities that would become Assumed Liabilities or defer expenses, reduce Inventories or otherwise increase cash on hand in connection with the Business, except in the ordinary course of business consistent with past practice; (r) terminate or modify in any material respect, or fail to exercise renewal rights with respect to, any material insurance policy; or (s) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoing.