Common use of Conduct of Business of Seller Clause in Contracts

Conduct of Business of Seller. During the period from the Effective Date and continuing until the earlier of the termination of this Agreement and the Closing, subject to the limitations set forth 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 disclosed in Schedule 7.1 hereof, during the period from the Effective Date and continuing until the earlier of the termination of this Agreement and the Closing, without the written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Seller agrees that it shall not, and Seller Parent agrees that it shall cause Seller not to: (i) sell, pledge, lease, license, dispose of, abandon, grant, encumber or otherwise authorize or permit the sale, pledge, disposition, grant or Encumbrance (other than Permitted Encumbrances) of all or any portion of, or any direct or indirect interest in, the Property, except in the Ordinary Course of Business and except as set forth on Schedule 7.1; (ii) cause or permit the Property to be subjected to, or permit to exist on the Property, any Lien or Encumbrance, other than Permitted Encumbrances; (iii) fail to maintain the existing insurance coverage of all types relating to the Property (provided, however, in the event that any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies in the Ordinary Course of 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 Property, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal Requirements, (ii) due to acts of God or other force majeure events; or (iii) in the Ordinary Course of Business; (vi) seek any zoning or land use changes with respect to the Property; or (vii) agree, whether or not in writing, to do any of the foregoing, or to authorize or announce an intention to do any of the foregoing.

Conduct of Business of Seller. During the period from the Effective Date and continuing date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement and in accordance with the Closing, subject to the limitations terms set forth hereinin ARTICLE VIII (the “Interim Period”), 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 disclosed required by applicable Law or with the prior written consent of Buyer, conduct its business in Schedule 7.1 hereofthe ordinary course of business consistent with past practice, during and, to the period from extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the Effective Date services of its current officers and continuing until employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the earlier generality of the termination foregoing, between the date of this Agreement and the ClosingClosing Date, Seller shall not, without the prior written consent of Purchaser Buyer: (which consent 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 unreasonably withheldsecured by any interest of any kind in the Purchased Assets; (e) enter into any Material Contract; (f) amend, conditioned waive, modify in any material respect or delayedin 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 agrees Employee or any independent contractor or consultant of the Business; (iii) enter into, amend or terminate any Seller Employee Plan that it shall notwill have an impact on the Business; or (iv) enter into, and Seller Parent agrees that it shall cause Seller not to: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, pledgeassign, lease, license, dispose of, abandon, grant, encumber or otherwise authorize or permit the sale, pledge, dispositiontransfer, grant or Encumbrance (other than Permitted Encumbrances) of all or any portion of, or any direct or indirect security interest in, otherwise encumber or dispose of any Seller IP, or grant any right or license to any Seller IP; (q) accelerate the Propertycollection 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 ordinary course of Business and except as set forth on Schedule 7.1business consistent with past practice; (iir) cause terminate or permit the Property modify in any material respect, or fail to be subjected exercise renewal rights with respect to, or permit to exist on the Property, any Lien or Encumbrance, other than Permitted Encumbrances; (iii) fail to maintain the existing material insurance coverage of all types relating to the Property (provided, however, in the event that any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies in the Ordinary Course of 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 Property, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal Requirements, (ii) due to acts of God or other force majeure events; or (iii) in the Ordinary Course of Business; (vi) seek any zoning or land use changes with respect to the Propertypolicy; or (viis) agreeannounce an intention, whether enter into any formal or not in writing, to do any of the foregoinginformal agreement, or to authorize or announce an intention otherwise make a commitment to do any of the foregoing.

Conduct of Business of Seller. (a) During the period from the Effective Execution Date and continuing until the earlier of the termination of this Agreement and in accordance with Section 4.4 or the Closing, subject to except (1) for any limitations on operations imposed by the limitations Bankruptcy Court or the Bankruptcy Code, (2) as required by applicable Law, (3) as otherwise expressly contemplated by this Agreement or as set forth hereinon Schedule 9.1(a), Seller shall, and Seller Parent shall cause Seller to, in each case except or (4) with the prior written consent of Purchaser (such consent not to the extent that Purchaser shall otherwise consent in writing, which consent may not be unreasonably withheld, conditioned or delayed), carry on Seller shall, and shall cause its Subsidiaries to: (i) conduct the Business and operate and maintain the Acquired Assets and the assets of its Subsidiaries 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 Business; (subject to good faith disputes over such Liabilities or Taxesii) and use all commercially reasonable efforts consistent with past practices to (x) preserve the goodwill of 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 Governmental Bodies, customers, employees, suppliers, vendors, lessors, licensors, licensees, contractors, distributors, agents, Employees and others having business dealings with it in the Business; and (y) comply with all material respects. Without limiting applicable Laws and, to the generality of extent consistent therewith, preserve its assets (tangible and intangible), including the foregoingIT Assets; and (iii) diligently prosecute and maintain all Seller Registered Intellectual Property Rights, except as expressly contemplated including by this Agreement or as disclosed in Schedule 7.1 hereofmaking all requisite filings, during renewals, and payments. (b) During the period from the Effective Execution Date and continuing until the earlier of the termination of this Agreement and in accordance with Section 4.4 or the Closing, without 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 (which such consent shall not to be unreasonably withheld, conditioned or delayed), Seller agrees that it shall not, and Seller Parent agrees that it shall cause Seller its Subsidiaries not to: (i) sellmortgage, pledge, lease, license, dispose of, abandon, grant, encumber pledge or otherwise authorize or permit the sale, pledge, disposition, grant or subject to any Encumbrance (other than a Permitted EncumbrancesEncumbrance) of all the Business or any portion of, of the Acquired Assets or any direct or indirect interest in, the Property, except in the Ordinary Course assets of Business and except as set forth on Schedule 7.1its Subsidiaries; (ii) cause or permit the Property to be subjected tosell, or assign, license, transfer, convey, lease, surrender, relinquish, abandon, permit to exist on lapse or otherwise dispose of any of the PropertyAcquired Assets or the assets of its Subsidiaries or offer or enter into any agreement to do any of the foregoing, any Lien or Encumbrance, other than Permitted Encumbrancesexcept to the extent permitted by this Agreement; (iii) fail to maintain the existing insurance coverage cancel or compromise any material debt or Claim or waive or release any material right of all types relating to the Property (provided, however, in the event Seller that any such coverage shall be terminated constitutes an Acquired Asset or lapse, Seller may procure substitute insurance policies in the Ordinary Course an asset of Business)its Subsidiaries; (iv) fail to make capital expenditures at (A) enter into any new Contract or renew any existing Contract requiring payments by Seller and (B) cancel, terminate, amend, modify, supplement or rescind any Material Contract or any terms of any Material Contract without the Property required under express written approval of the Purchaser, which shall not be unreasonably withheld or delayed, except for the purpose of effecting any Gaming changes in applicable Law or by any Gaming Authorityimplementing regulatory requirements; (v) close terminate, amend, modify or shut down the Business abandon any rights under any Material Contract or the Property, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal Requirements, (ii) due to acts of God or other force majeure events; or (iii) in breach any Material Contract outside the Ordinary Course of Business; (vi) seek incur any zoning long-term expenditure associated with the Acquired Assets that would be an Assumed Liability or land incur any long-term expenditure associated with the assets of its Subsidiaries; (vii) incur or permit to be 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 changes commercially reasonable efforts to prosecute with due diligence any pending applications with respect to the PropertyPermits, 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, abandon, permit to lapse or grant any rights or modify any existing rights under any Seller Intellectual 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; (xv) make, commit to make or incur any Liability in excess of Ten Thousand United States Dollars (US$10,000) for capital expenditures; (xvi) enter into a plan of consolidation, merger, share exchange or reorganization with any Person or adopt a plan of complete or partial liquidation; (xvii) authorize, declare or pay any dividends on or make any distribution with respect to 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 change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP or by a Governmental Body; or (viixx) agree, whether or not in writing, enter into any Contract to do any of the foregoing, foregoing or to authorize or announce an intention 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 foregoingAcquired Names, and any derivations thereof.

Conduct of Business of Seller. (a) During the period from the Effective Date date of this Agreement and continuing until the earlier of the termination of this Agreement and pursuant to Section 9.1 hereof or the Closing, subject to the limitations set forth hereinbelow and subject to Section 7.24, Seller shall, and Seller with respect to the Purchased Assets only, Parent shall and shall cause Seller to, Parent’s other subsidiaries to (in each case case, except as otherwise contemplated by this Agreement, required by applicable Law, or to the extent that Purchaser Buyer shall otherwise consent in writing, which consent may not be unreasonably withheld, conditioned delayed or delayedconditioned), carry on the Business its business in the Ordinary Course of Business usual, regular and ordinary course in all material respectssubstantially the same manner as previously conducted, 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 to pay its Liabilities debts and Taxes with respect to the Property when due (subject to good faith disputes over such Liabilities or Taxes) and debts), and, to the extent consistent with the operation of the Purchased Assets in the Ordinary Course of Business, 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, suppliers and 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 Agreement, required by applicable Law or as disclosed in Schedule on Section 7.1 hereofof the Seller Disclosure Letter, and subject to Section 7.24, during the period from the Effective Date date of this Agreement and continuing until the earlier of the termination of this Agreement and pursuant to Section 9.1 hereof or the Closing, without the written consent of Purchaser Buyer (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), Seller agrees and Parent agree, only as it relates to the Purchased Assets, that it they shall not, and Seller Parent agrees that it shall cause Seller not to: (i) sell, pledge, lease, license, dispose ofof or grant any of the Purchased Assets, abandonexcept for (1) dividends or distributions of cash or cash equivalents, grant(2) payments of cash, encumber and sales or otherwise authorize other transfers of current assets, in the Ordinary Course of Business in connection with the operation of the Property, (3) sales of equipment, personal property and other non-current assets in the Ordinary Course of Business in an amount not to exceed, individually or permit in the saleaggregate, pledge$3,000,000, disposition(4) other sales which do not exceed, grant either individually or Encumbrance in the aggregate, $1,000,000, (5) sales or other dispositions of obsolete or worthless items, and (6) leases and rentals in the Ordinary Course of Business, which, in each case, shall be subject to Section 7.1(a)(vii); (ii) except in the Ordinary Course of Business or for Liens securing indebtedness referred to in clause (iii)(c) below, subject the Purchased Assets to a Lien, other than Permitted EncumbrancesEncumbrances and Mechanics’ Liens; (iii) of all or any portion ofincur (with respect to Seller), or allow Seller to incur (with respect to Parent), any direct indebtedness for borrowed money, except (A) in the Ordinary Course of Business though not to exceed, individually or indirect interest inin the aggregate, $1,000,000, (B) indebtedness among Seller and Parent or its Affiliates, and (C) indebtedness under any credit facility of Parent or its Affiliates and in respect of guarantees under the Property8.5% Senior Secured Notes due 2015 issued by Affiliates of Parent; (iv) modify or 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 and except as set forth on Schedule 7.1Business; (ii) cause or permit the Property to be subjected to, or permit to exist on the Property, any Lien or Encumbrance, other than Permitted Encumbrances; (iiiv) fail to maintain the all existing insurance coverage of all types relating to the Property Purchased Assets (provided, however, in the event that 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; (ivvii) fail enter into any Contract to make capital expenditures 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 Property required under remaining term thereof in excess of $25,000 per month; or (C) is between Seller and any Gaming Law 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 by any Gaming Authoritymemoranda of understanding with the parties set forth in Section 5.10 of the Seller Disclosure Letter; (vviii) close or shut down transfer any Personal Property from the Business or the PropertyProperty to any other location of Parent, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal Requirements, (ii) due to acts of God or other force majeure events; or (iii) in the Ordinary Course of Business; (viix) seek 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 zoning of the material transferable Seller Permits to be transferred to Buyer at the Closing except in the Ordinary Course of Business, or land fail to use changes with respect good faith efforts to obtain any renewal or extension, as may be required by Law, of any material Seller 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 (viixiii) agree, whether or not in writing, enter into a 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 foregoingforegoing 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. (a) During the period from the Effective Date date of this Agreement and continuing until the earlier of the termination of this Agreement and or the Closing, subject to the limitations set forth hereinbelow, Seller shall, and Seller Parent shall cause Seller to, in each case (except to the extent that Purchaser Buyer shall otherwise consent in writing, which consent may not be unreasonably withheld), conditioned or delayedwith respect to the Purchased Assets only, carry on the Business its business in the Ordinary Course of Business usual, regular and ordinary course in all material respectssubstantially the same manner as previously conducted, 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 to pay its Liabilities and Taxes with respect to the Property when due (subject to good faith disputes over such Liabilities debts or Taxes) and ), and, to the extent consistent with the operation of the Purchased Assets in the Ordinary Course of Business, 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 respectsit. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement or as disclosed in Schedule on Section 7.1 hereofof the Seller Disclosure Letter, during the period from the Effective Date date of this Agreement and continuing until the earlier of the termination of this Agreement and or the Closing, without the written consent of Purchaser Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller agrees agrees, only as it relates to the Purchased Assets, that it shall not, and Seller Parent agrees that it shall cause Seller not to: (i) sell, pledge, lease, license, dispose of, abandon, grant, encumber or otherwise 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, (2) sales of equipment and other than Permitted Encumbrancesnon-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 all 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; (ii) incur any Liabilities, except in the Ordinary Course of Business; (iii) modify, amend or terminate the Ground Lease or any portion ofof the Material Assumed Contracts or waive, release or assign any direct rights or indirect interest in, the Propertyclaims, except in the Ordinary Course of Business and except or as set forth on Schedule 7.1required by applicable Law; (iiiv) cause or permit except in the Property Ordinary Course of Business, subject the Purchased Assets to be subjected to, or permit to exist on the Property, any a Lien or Encumbrance, other than Permitted Encumbrances; (iiiv) fail to maintain the existing insurance coverage of all types relating to the Property Purchased Assets (provided, however, in the event that 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; (ivvii) fail to make capital expenditures at the Property required under any Gaming Law enter into or by any Gaming Authority; (v) close terminate or shut down the Business or the Property, except for such closures or shutdowns which are provide notice of termination of (i) required by actionany license, orderdistributorship, writdealer, injunctionsales representative, judgment joint venture, credit, or decree similar agreement, or otherwise required by Legal Requirements, (ii) due any Contract or transaction involving a total remaining commitment by or to acts Seller in excess of God or other force majeure events$50,000, unless such Contract is cancelable upon thirty (30) days notice; or provided, however, that Seller may enter into the following agreements without any consent from Buyer: (iiiA) any advance booking contract which does not involve a room block commitment in excess of one thousand (1000) room nights; and (B) purchase orders in the Ordinary Course of Business. (viii) other than in the Ordinary Course of Business, sell, lease, or otherwise dispose of any material asset or property of Seller or mortgage, pledge, or impose any lien or other encumbrance on any material asset or property of Seller; (viix) seek any zoning or land use changes fail to maintain inventory levels (both consumables and non-consumables) in such quality and quantity as is substantially consistent with respect to Seller’s past practices at the PropertyProperty and in the Ordinary Course of Business; or (viix) agree, whether or not in writing, enter into a Contract to do any of the foregoing, or to authorize or announce an 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 Except as contemplated by this Agreement, during the period from the Effective Date and continuing until the earlier of the termination of this Agreement and the Closing, subject date hereof to the limitations set forth hereinClosing Date, 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 conduct the Business in the Ordinary Course ordinary course of Business in all material respects, maintain the Property in a state of repair business consistent with the Ordinary Course of Business in all material respectspast practice and, 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) extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, use all its commercially reasonable efforts consistent with past practices and policies to preserve intact its present current business organizationoperations, keep available the services service of its present current officers and key employees and preserve its relationships with customers, employees, suppliers, distributors, lessors, creditors, employees, contractors and others having business dealings with it in all material respectsit, 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 hereof and the Closing Date, Seller in connection with the Business shall not, except with the prior written consent of Buyer: (a) Adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Seller or any of its subsidiaries; (b) Either (i) incur or assume any long-term or short-term indebtedness or issue any debt securities, in each case, except for borrowings under existing lines of credit 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 and consistent with past practices; (iii) make any loans, advances or capital contributions to or investments in any other person (other than customary loans or 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; (c) Except as may be required by applicable 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 as in amounts not greater than under prior Seller practices or made pursuant to written agreements or other legally binding commitments disclosed to Buyer in Schedule 7.1 writing and in effect on the date hereof; (f) Other than in the ordinary course of business and consistent with past practices, during the period from the Effective Date and continuing until the earlier of the termination of this Agreement and the Closing, without the written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Seller agrees that it shall not, and Seller Parent agrees that it shall cause Seller not to: (i) acquire, sell, pledge, lease, license, dispose of, abandon, grant, encumber transfer or otherwise authorize dispose of any assets in any single transaction or permit the sale, pledge, disposition, grant or Encumbrance series of related transactions having a fair market value in excess of One Thousand Dollars (other than Permitted Encumbrances$1,000) of all or any portion of, or any direct or indirect interest in, the Property, except in the Ordinary Course of Business and except as set forth on Schedule 7.1; aggregate; (ii) cause or permit the Property to be subjected toenter into any exclusive license, or permit to exist on the Propertydistribution, any Lien or Encumbrancemarketing, other than Permitted Encumbrances; (iii) fail to maintain the existing insurance coverage of all types relating to the Property (provided, however, in the event that any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies in the Ordinary Course of 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 Property, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal Requirements, (ii) due to acts of God sales or other force majeure eventsagreement; or (iii) acquire, sell, lease, license, transfer or otherwise dispose of any 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 Ordinary Course of Business; (h) Revalue in any material respect any of its assets, including writing down the value of inventory or writing-off notes or accounts receivable, other 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 or agreement other than in the ordinary course of business consistent with past practice 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 Seller or 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) seek authorize any zoning new or land use changes with respect 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 PropertyAssets or 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; or (viir) agree, whether Take or not agree in writing, writing or otherwise to do take any of the foregoing, or actions 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 authorize or announce an intention to do take any action that would make any of the foregoingrepresentations or warranties of Seller contained in this Agreement (including the Exhibits hereto) untrue or incorrect.

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 period from Bankruptcy Court, the Effective Date and continuing until Bankruptcy Case or the earlier Bankruptcy Code or Seller’s debtor-in-possession financing or use of cash collateral, as the termination of this Agreement and the Closingcase may be, subject to the limitations set forth 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 Taxesiii) 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 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 disclosed in set forth on Schedule 7.1 hereof6.1, during the period from the Effective Date and continuing until the earlier of the termination date of this Agreement until the Closing (or such earlier date and the Closingtime on which this Agreement is terminated pursuant to Article VIII), without the written unless Purchaser otherwise consents in writing (such consent of Purchaser (which consent shall not to be unreasonably withheld, conditioned delayed or delayedconditioned), Seller agrees that it shall operate its business in the Ordinary Course, and shall not, and Seller Parent agrees that it shall cause Seller not to: (i) sellsell or lease to any Person, pledgein a single transaction or series of related transactions, leaseany of the Acquired Assets, licenseexcept (A) Ordinary Course dispositions of obsolete, dispose of, abandon, grant, encumber surplus or otherwise authorize wornout assets or permit assets that are no longer used or useful in the sale, pledge, disposition, conduct of the business of Seller and (B) other sales and leases in the Ordinary Course; (ii) grant or 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 all or any portion of, or any direct or indirect interest in, the Property, except in the Ordinary Course of Business this Agreement (and except as set forth on Schedule 7.1; (ii) cause or permit the Property required to be subjected to, or permit to exist on the Property, any Lien or Encumbrance, other than Permitted Encumbrancesso secured by their terms); (iii) fail to maintain the existing insurance coverage take any action that is not consistent with Seller’s operation of all types relating to the Property (provided, however, in the event that any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies its business in the Ordinary Course of Business);in any material respects; or (iv) fail authorize any of, or commit or agree, in writing or otherwise, to make capital expenditures at take any of, the Property required under any Gaming Law or by any Gaming Authority;foregoing actions. (vb) close Nothing contained in this Agreement is intended to give Purchaser or shut down its Affiliates, directly or indirectly, the Business right to control or the Property, except for such closures direct Seller’s or shutdowns which are (i) required by action, order, writ, injunction, judgment its Subsidiaries’ operations or decree or otherwise required by Legal Requirements, (ii) due to acts of God or other force majeure events; or (iii) in the Ordinary Course of Business; (vi) seek any zoning or land use changes with respect business prior to the Property; or (vii) agreeClosing, whether and nothing contained in this Agreement is intended to give Seller, directly or not in writingindirectly, the right to do any control or direct Purchaser’s or its Subsidiaries’ operations. Prior to the Closing, each of Purchaser and Seller shall exercise, consistent with the foregoingterms and conditions of this Agreement, or to authorize or announce an intention to do any of the foregoing.complete control and supervision over its and its Subsidiaries’ respective operations. 38760-00003/4781767.1

Conduct of Business of Seller. (a) During the period from the Effective execution date (the “Execution Date”) and continuing until the earlier of the termination of this Agreement in accordance with Section 7.4 or the Closing, 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 (4) with the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Seller shall: (i) conduct the Business and operate and maintain the Purchased Assets in the 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 dealings with the Business; and (y) comply with all applicable Laws and, to the extent consistent therewith, preserve their assets (tangible and intangible). (b) During the period from the Execution Date and continuing until the earlier of the termination of this Agreement and in accordance with Section 7.4 or the Closing, subject 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 (4) with the prior written consent of the Purchaser (such consent not to the limitations set forth 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 delayeddelayed and, carry on the Business in the Ordinary Course of event that Seller requests Purchaser’s consent in writing and Purchaser does not provide a response within five (5) Business in all material respectsDays after such request, 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 Purchaser shall be deemed 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 disclosed in Schedule 7.1 hereof, during the period from the Effective Date and continuing until the earlier of the termination of this Agreement and the Closing, without the have provided their prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayedto such request), the Seller agrees that it shall not, and Seller Parent agrees that it shall cause Seller not to: (i) sellmortgage, pledge, lease, license, dispose of, abandon, grant, encumber pledge or otherwise authorize or permit the sale, pledge, disposition, grant or subject to any Encumbrance (other than a Permitted EncumbrancesEncumbrance) of all the Business or any portion of, or any direct or indirect interest in, of the Property, except in the Ordinary Course of Business and except as set forth on Schedule 7.1Purchased Assets; (ii) cause cancel or permit compromise any debt or material claim or waive or release any material right of the Property Seller that constitutes a Purchased Asset or otherwise relates to be subjected to, or permit to exist on the Property, any Lien or Encumbrance, other than Permitted EncumbrancesBusiness; (iii) fail except with the prior written consent of Purchaser, such consent not to maintain be unreasonably withheld: (A) enter into any new Contract or renew any existing Contract requiring payments by or to Seller in excess of $20,000.00 over the existing insurance coverage thirty day period immediately following the execution thereof and (B) cancel, terminate, amend, modify, supplement or rescind any Material Contract or any terms of all types relating any Material Contract, except for the purpose of effecting any changes in applicable Law or implementing regulatory requirements or in response to a breach or default by the Property (provided, however, in the event that any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies in the Ordinary Course of Business)other party thereto; (iv) fail to make capital expenditures at the Property required abandon any rights under any Gaming Law Material Contract or by breach any Gaming Authority;Material Contracts; or (v) close make or shut down 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, policies or practices, or settle any tax liability (“Tax Liability”), except in each case as would not reasonably be expected to result in Liability to the Business Purchaser or the Property, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal Requirements, (ii) due to acts of God or other force majeure events; or (iii) in the Ordinary Course of Business; (vi) seek any zoning or land use changes with respect to the Property; or (vii) agree, whether or not in writing, to do any of the foregoing, or to authorize or announce an intention to do any of the foregoing.

Conduct of Business of Seller. (a) During the period from the Effective Date date of this Agreement and continuing until the earlier of the termination of this Agreement and the Closing, subject to the limitations set forth hereinbelow, Seller shall, and Seller Parent shall cause Seller to, in each case (except to the extent that Purchaser Buyer shall otherwise consent in writing, which consent may not be unreasonably withheld, conditioned withheld or delayed), carry on the Business its business in the Ordinary Course of Business in all material respectsBusiness, maintain the Property Purchased Assets in good working order and condition and in a state of repair consistent with the Ordinary Course of Business in all material respectsand the state of repair and condition on the date hereof, ordinary wear and tear excepted, comply with all applicable Legal Requirements Laws 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 respectsit. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement or as disclosed in Schedule on Section 7.1 hereofof the Seller Disclosure Letter, during the period from the Effective Date date of this Agreement and continuing until the earlier of the termination of this Agreement and the Closing, without the written consent of Purchaser Buyer (which consent shall not be unreasonably withheld, conditioned withheld or delayed), Seller agrees that it shall not, and Seller Parent agrees that it shall cause Seller not to: (i) sell, pledge, lease, license, dispose of, abandon, grant, encumber or otherwise 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 Liabilities, except in the Ordinary Course of Business; (iii) materially violate, materially modify, materially amend or terminate the Existing Ground Lease (other than Permitted Encumbrances) of all as set forth in Section 7.21), the Amended Ground Lease or any portion ofof the Assumed Contracts or waive, release or assign any direct material rights or indirect interest in, the Propertyclaims, except in the Ordinary Course of Business and except or as set forth on Schedule 7.1required by applicable Law; (iiiv) cause or permit the Property Purchased Assets to be subjected to, or permit to exist on the PropertyPurchased Assets, any Lien or Encumbrance, other than Permitted Encumbrances; (iiiv) fail to maintain the existing insurance coverage of all types relating to the Property Purchased Assets (provided, 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 of 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 accrual or arrangement for payment of salary or other payments or benefits pursuant to, 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 ($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 any Affiliates of Seller, or (z) contain(s) any restrictions on the Business or the operations of the Property following the Closing unless such Contract, 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 early termination; provided, however, that Seller may enter into purchase orders in the Ordinary Course of Business without any consent from Buyer; (x) fail 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; (xi) make any material changes to advertising or marketing activities relating to the Property or the Business, other than in the Ordinary Course of Business; (xii) terminate any of the Employees, except in the Ordinary Course of Business or as required by applicable Law; (xiii) transfer any of the Employees to any property or business owned or operated by Seller or Seller’s Affiliates (other than the Property); (ivxiv) authorize or make capital expenditures in the aggregate in excess of the amount set forth on Section 7.1(a)(xiv) of the Seller Disclosure Letter (excluding (i) the purchase of Permitted Additional Gaming Machines and (ii) the capital expenditures required to be made by Section 7.1(a)(xv)); (xv) fail to make capital expenditures at expenditures: (a) to purchase and install the Property gaming machines described in Section 7.1(a)(xv) of the Seller Disclosure Letter or (b) required to be made under any Gaming Law or by any Gaming Authority;; provided, that if Seller fails to make any such expenditures referred to in the immediately preceding clause (a) or (b), the 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 should have expended pursuant to this Section 7.1(a)(xv) and (y) the amount that Seller in fact spent. (vxvi) close or shut down the Business or the Property, except for such closures or shutdowns which are (i1) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal RequirementsLaw, or (ii2) due to acts of God or other force majeure events; ; (xvii) delete, damage or (iii) erase any Property Specific Data, other than in the Ordinary Course of Business; (vixviii) seek fail to file any zoning Tax Return for any Pre-Closing Tax Period when due, or land use changes with respect fail to pay any Taxes required to be paid unless such Tax is described in Section 7.1(a)(xviii) of the PropertySeller Disclosure Letter as being contested in good faith; or (viixix) agree, whether or not in writing, to do any of the foregoing, or to authorize or announce an intention to do any of the foregoing.

Conduct of Business of Seller. During the period from the Effective Date and continuing until the earlier Except (i) as required by any Order of the termination 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 this Agreement and the Closingany Transaction Document, subject (iv) for reasonable actions taken or not taken in response to the limitations set forth herein, Seller shall, and Seller Parent shall cause Seller to, in each case except COVID-19 pandemic or 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 COVID-19 Measures (including any COVID-19 Response) or (v) as otherwise consented to in all material respects, and pay its Liabilities and Taxes with respect writing by Buyer (such consent not 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 disclosed in Schedule 7.1 hereof, during the period from the Effective Date and continuing until the earlier of the termination of this Agreement and the Closing, without the written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), during the period commencing on the date of this Agreement and continuing through the Closing or the earlier termination of this Agreement in accordance with its terms: (a) Seller agrees that it shall use its reasonable best efforts to preserve in all material respects the Purchased Assets; (b) Seller shall use commercially reasonable efforts to commence preparation (or cause the preparation) of any documents as shall be necessary to properly record the transfer and assignment of the Purchased Patents to Buyer; and (c) Seller shall not, and Seller Parent agrees that it shall cause Seller not to: (i) sell, pledgelease (as lessor), lease, license, dispose of, abandon, grant, encumber transfer or otherwise authorize or permit the sale, pledge, disposition, grant or Encumbrance dispose of (other than Permitted Encumbrances) of all or any portion of, or any direct or indirect interest in, the Property, except in the Ordinary Course of Business and except as set forth on Schedule 7.1; (ii) cause or permit the Property to be subjected to, or permit to exist on the Property, become subject to any Lien or additional Encumbrance, other than Permitted Encumbrances, Encumbrances arising under any Bankruptcy Court orders relating to the use of cash collateral (as defined in the Bankruptcy Code) and Encumbrances arising in connection with any debtor-in-possession financing of Seller) any Purchased Assets; (ii) delay in any material 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) fail to maintain the existing insurance coverage of all types relating to the Property amend in any material and adverse respect or voluntarily terminate (provided, however, in the event that or waive any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies in the Ordinary Course of Business)material provision of) any Assumed Contracts; (iv) cancel, knowingly allow to lapse, fail to make capital expenditures at renew, maintain or defend, or encumber (in whole or in part) any Purchased Patent, in each case other than in the Property required under any Gaming Law or by any Gaming Authority;ordinary course of business; or (v) close or shut down the Business or the Property, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal Requirements, (ii) due to acts of God or other force majeure events; or (iii) in the Ordinary Course of Business; (vi) seek any zoning or land use changes with respect to the Property; or (vii) agree, whether or not in writing, to do authorize any of the foregoing, or to authorize commit or announce an intention agree to do any of the foregoing.

Conduct of Business of Seller. During (a) From the period from date hereof ----------------------------- through the Effective Date and continuing until the earlier of the termination of this Agreement and the ClosingClosing Date, subject Seller agrees that, unless it obtains Buyer's advance written consent to the limitations set forth hereindo otherwise, which consent shall not be unreasonably withheld or delayed, Seller shall, and Seller Parent shall cause Seller to, in each case except : (i) conduct its operations according 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 ordinary and usual 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 business consistent with past practices and policies practice, use reasonable efforts to preserve intact its present business organization, keep available and maintain the services Assets and the good will of its present officers the Business and key employees and to use reasonable efforts to preserve its relationships with customers, employees, customers and 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 disclosed in Schedule 7.1 hereof, during the period from the Effective Date and continuing until the earlier of the termination of this Agreement and the Closing, without the written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Seller agrees that it shall not, and Seller Parent agrees that it shall cause Seller not to: (i) sell, pledge, lease, license, dispose of, abandon, grant, encumber or otherwise authorize or permit the sale, pledge, disposition, grant or Encumbrance (other than Permitted Encumbrances) of all or any portion of, or any direct or indirect interest in, the Property, except in the Ordinary Course of Business and except as set forth on Schedule 7.1;Seller. (ii) cause or permit maintain in the Property ordinary course of business, consistent with past 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 be subjected to, or permit ordinary wear and tear and to exist on the Property, any Lien or Encumbrance, other than Permitted Encumbrances;requirements of such Contracts and Permits. (iii) fail to maintain the existing insurance coverage of all types relating to the Property not incur any Liability (provided, however, other than Liabilities incurred in the event that any such coverage shall be terminated or lapseordinary course of business, Seller may procure substitute insurance policies consistent with past practice, which are not in the Ordinary Course aggregate material thereto), nor enter into any Contract of Business);a type required to be included on any Schedule hereto. (iv) fail not undertake (nor permit to make capital expenditures at be undertaken) any of the Property required under any Gaming Law or by any Gaming Authority;actions specified in Sections 4.5(a) through (c). (v) close or shut down conduct the Business or in such a manner so that the Property, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal Requirements, (ii) due representations and warranties of Seller contained herein shall continue to acts be true and correct on and as of God or other force majeure events; or (iii) in the Ordinary Course Closing Date as if made on and as of Business;the Closing Date. (vi) seek consult with Buyer prior to any zoning renewal, amendment, extension or land use changes with respect termination of, waiver of any material right under, or any failure to the Property; or (vii) agreerenew, whether any Contract or Permit and will not take any such action if Buyer objects thereto in writing, to do any of the foregoing, or to authorize or announce an intention to do any of the foregoing.

Conduct of Business of Seller. During the period from Pre-Closing Period, except (a) for any limitations on operations imposed by the Effective Date and continuing until Bankruptcy Court or the earlier of the termination of Bankruptcy Code, (b) as required by applicable Law, (c) as otherwise expressly contemplated by this Agreement and the Closing, subject to the limitations or as set forth hereinon Schedule 7.1 or (d) with the prior written consent of Purchaser, 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 : (i) conduct the Business and operate and maintain the Purchased Assets 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 respectsBusiness, 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 without limiting the generality of the foregoing, except as expressly contemplated by this Agreement or as disclosed in Schedule 7.1 hereof, during the period from the Effective Date will store and continuing until the earlier maintain all of the termination of this Agreement Samples at all times in accordance with all Laws, Company standards and procedures as set forth in the Closing, without the written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Seller agrees that it shall notDocuments and disclosed to Purchaser, and Seller Parent agrees that it shall cause Seller not to:industry best practice; (iii) selluse its commercially reasonable efforts to preserve the goodwill of and relationships with Governmental Bodies, pledgecustomers, leasesuppliers, licensevendors, dispose oflessors, abandonlicensors, grantlicensees, encumber contractors, distributors, agents, Employees and others having business dealings with the Business; (iii) comply with all applicable Laws; (iv) maintain 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 otherwise authorize or permit on its behalf; (v) maintain the sale, pledge, disposition, grant or Encumbrance (other than Permitted Encumbrances) books of all or any portion of, or any direct or indirect interest in, account and records of the Property, except Business as conducted by it in the Ordinary Course of Business and except as set forth on Schedule 7.1consistent with past practices; (iivi) cause not mortgage, pledge or permit the Property subject to be subjected to, or permit to exist on the Property, any Lien or Encumbrance, Encumbrance (other than a Permitted EncumbrancesEncumbrance) the Business or any of the Purchased Assets; (iiivii) not sell, assign, license, transfer, convey, lease, surrender, relinquish or otherwise dispose of any of the Purchased Assets; (viii) 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 its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to result in Liability to Purchaser or the Business; (xi) not settle or compromise any Action related to or in connection with the Business, the Purchased Assets or any Assumed Liability; (xii) not (A) take any action that reasonably jeopardizes the validity of or results in the revocation, surrender or forfeiture of, any of the Material Governmental Authorizations, (B) fail to maintain the existing insurance coverage of all types relating 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 (provided, however, in the event that any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies other than in the Ordinary Course of Business);; and (ivxiv) fail not authorize, or commit or agree to make capital expenditures at take, any of the Property required under any Gaming Law or by any Gaming Authority; (v) close or shut down the Business or the Property, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal Requirements, (ii) due to acts of God or other force majeure events; or (iii) actions set forth in the Ordinary Course of Business; clauses (vi) seek any zoning or land use changes with respect to the Property; or through (vii) agree, whether or not in writing, to do any of the foregoing, or to authorize or announce an intention to do any of the foregoingxiii).

Conduct of Business of Seller. During the period from Pre-Closing Period, Seller shall use commercially reasonable efforts, except as otherwise required, authorized or restricted pursuant to the Effective Date and continuing until the earlier Bankruptcy Code or an Order of the termination of this Agreement and the ClosingBankruptcy Court, subject to the limitations set forth 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 operate the Business in the Ordinary Course of Business (among other things, Seller will not incur unreasonable liabilities, including, without limitation, inappropriate increases in all material respects, maintain the Property in a state Inventory or factoring of repair consistent with the Ordinary Course of Business in all material respects, comply with all applicable Legal Requirements and accounts receivable). 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 shall use all commercially reasonable efforts consistent with past practices and policies to (A) preserve intact its present business organizationorganizations, (B) maintain the Business and the Purchased Assets (normal wear and tear excepted), (C) keep available the services of its present officers and key employees and preserve its Employees, (D) maintain satisfactory relationships with customerslicensors, employeeslicensees, suppliers, contractors, distributors, consultants, customers, vendors and others having business dealings relationships with it Seller in connection with the operation of the Business (other than payment of pre-petition claims), (E) pay all of its post-petition obligations in the Ordinary Course of Business, and (F) continue to operate the Business and Purchased Assets in all material respectsrespects in compliance with all Laws applicable to the Business and Seller consistent with past practice. Without limiting the generality of the foregoing, and except (i) as otherwise expressly provided in or contemplated by this Agreement Agreement, or as disclosed in Schedule 7.1 hereof(ii) required, during authorized or restricted pursuant to the period from the Effective Date and continuing until the earlier Bankruptcy Code or an Order of the termination of this Agreement and Bankruptcy Court, on or prior to the ClosingClosing Date, Seller may not, without the prior written consent of Purchaser (which consent shall not be unreasonably withheldPurchaser, conditioned take any of the following actions with respect to the Business or delayed), Seller agrees that it shall not, and Seller Parent agrees that it shall cause Seller not tothe Purchased Assets: (a) other than as set forth in Schedule 8.1(a), (i) sellmodify in any manner the compensation of any of the Employees or officers, pledge, lease, license, dispose of, abandon, grant, encumber or otherwise authorize or permit accelerate the sale, pledge, disposition, grant or Encumbrance payment of any such compensation (other than Permitted Encumbrancessuch that the liability associated with such modification is excluded from the Assumed Liabilities), (ii) grant any (a) bonuses, whether monetary or otherwise, (b) increase wages or salary or (c) increase other compensation or material benefits, in any case, in respect of all any current or former employee, independent contractor, director or officer of the Seller; (b) other than as set forth in Schedule 8.1(b), engage any new Employee other than in the Ordinary Course of Business, provided, however, that Seller shall not engage any new Employee whose annual base salary would exceed $150,000; (c) except as set forth in Schedule 8.1(c), remove or permit to be removed from any building, facility, or real property any asset or any portion of, or any direct or indirect interest in, Inventory (other than in connection with the Property, except sale of Inventory in the Ordinary Course of Business and except the sale of fixtures, equipment and related assets in connection with the closing of facilities in an amount not to exceed $200,000. (d) sell, lease or otherwise dispose of, mortgage, hypothecate or otherwise encumber any asset (other than sales of Inventory in the Ordinary Course of Business and other than any liens permitted or provided for in the DIP Order); (e) amend, terminate or renew any Contract other than (i) in the Ordinary Course of Business or (ii) outside of the Ordinary Course of Business, which does not result in an increase in the term of any such Contract by more than one (1) year and does not result in an obligation of Seller in excess of $300,000; (f) fail to use commercially reasonable efforts to maintain the validity of Seller’s rights in, to or under any Intellectual Property used in the operation of the Business or the Purchased Assets; (g) fail to use commercially reasonable efforts to maintain all material Permits of Seller, used in the operation of the Business or the Purchased Assets; (h) make any unusual or extraordinary efforts to collect any outstanding Accounts Receivable, liability or Indebtedness, give any discounts or concessions for early payment of such accounts receivable, liability or Indebtedness, other than the usual discounts given by the Business in the Ordinary Course of Business and make any sales of, or, other than liens provided for in the DIP Order, convey any interest in, any accounts receivable or intercompany obligation, liability or Indebtedness to any third party; (i) other than transactions pursuant to agreements or arrangements in effect on the Petition Date as set forth on Schedule 7.1; 8.1(i), engage in any transaction with any Affiliate, subsidiary, shareholder, officer or director of Seller (ii) cause or permit the Property to be subjected to, or permit to exist on the Property, any Lien or Encumbrance, other than Permitted Encumbrances; (iii) fail to maintain the existing insurance coverage of all types relating to the Property (provided, however, in the event that any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies in the Ordinary Course of Business), 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; (ivj) make any change in its method of accounting, except in accordance with GAAP; (k) fail to make capital expenditures at maintain any insurance policy in effect on the Property required under date hereof or amend any Gaming Law or by any Gaming Authority; (v) close or shut down the Business or the Property, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal Requirements, (ii) due to acts of God or policy other force majeure events; or (iii) than extensions in the Ordinary Course of Business; (vil) seek accelerate the payment of any zoning obligation, Liability or land use changes Indebtedness of Seller; (m) file any Tax Return (other than consistent with respect past practice and applicable Law) or make, change or rescind any Tax election or file any amended Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices or settle any Tax Liability, except in each case as would not reasonably be expected to result in any Liability to, or have any adverse effect on, the Purchaser or the Business; (n) enter into, termination of, adoption of or amendment to any Benefit Plan (other than amendments required by law or to maintain the tax qualified status of any Benefit Plan under Section 401(a) of the Code), any change in control or severance agreement or any other Benefit Plan or collective bargaining agreement; (o) loan to, or entry into any other transaction (other than in the Ordinary Course of Business) with, any employee, officer, director or independent contractor; (p) settle or agree to settle any pending or threatened litigation, except to the Propertyextent that such settlement is either (i) pursuant to an insured claim or (ii) less than $50,000; orand (viiq) agree, whether in writing or not in writingotherwise, to do any of the foregoing, or to authorize or announce an intention to do any of the foregoing.

Conduct of Business of Seller. During the period from the Effective Date date of this Agreement and continuing until the earlier of the termination of this Agreement and or the Closing, subject to the limitations set forth hereinbelow, Seller shall, and Seller Parent shall cause Seller to, in each case agrees (except to the extent contemplated by this Agreement or to the extent that Purchaser Buyer shall otherwise consent in writing, which such consent may not to be unreasonably withheld, conditioned or delayed, ) to carry on the Business business of the Company and the Company Subsidiary in the Ordinary Course of Business in all material respectsBusiness, 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 to pay its Liabilities debts and Taxes with respect to the Property when due (subject to good faith disputes over such Liabilities debts or Taxes) ), to continue to make maintenance capital expenditures in the Ordinary Course of Business and consistent with the Cap Ex Plan (as defined below), to market and promote the Property in the Ordinary Course of Business, and, to the extent consistent with the operation of the Property in the Ordinary Course of Business, 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 respectsit. Without limiting the generality of the foregoing, except as expressly contemplated by this Agreement or as disclosed in Schedule 7.1 hereofon Section 4.1 of the Seller Disclosure Letter, during the period from the Effective Date date of this Agreement and continuing until the earlier of the termination of this Agreement and or the Closing, without the written consent of Purchaser Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller agrees that it the Company and the Company Subsidiary shall not, and Seller Parent agrees that it shall cause Seller not to: (ia) sell, pledge, lease, license, dispose of, abandon, grant, encumber Encumber or otherwise authorize or permit 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 than Permitted Encumbrancesnon-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 all capital stock or other securities of the Company or the Company Subsidiary or any portion ofwarrants, options or other rights to acquire any direct such shares or indirect interest inother securities; (c) incur any material Liabilities, except in the PropertyOrdinary 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 and except or as set forth on Schedule 7.1required by applicable Law; (iie) cause or permit the Property any of its property or assets to be subjected to, or permit to exist on the Property, any a Lien or Encumbrance, other than Permitted Encumbrances; (iiif) fail to maintain the its existing insurance coverage of all types relating to the Property (provided, however, in the event that any such coverage shall be terminated or lapse, Seller 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); (ivj) fail to authorize or make capital expenditures at in the Property required under any Gaming Law or by any Gaming Authorityaggregate 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”); (vk) close or shut down the Business or the Property, except for such closures or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal RequirementsLaw, 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; (vim) seek issue, deliver, sell, grant, pledge or otherwise encumber or subject to any zoning Lien any shares of its capital stock, any other equity or land use 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 the organizational documents of the Company or the Company Subsidiary; (o) acquire or agree to acquire by merging or consolidating with, or by 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 any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets, other than in the Ordinary Course of Business; (p) grant to any Employee any material increase in (i) compensation, bonus or other benefits or (ii) severance or termination pay, in each 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 of Business and (C) solely in respect of any director or officer of the Company or the Company Subsidiary, in accordance with the Company’s annual performance appraisal process; (q) (i) enter into, amend or terminate any Company Benefit Plan unless the effect thereof would be neither material nor adverse to the Company or the Company Subsidiary or (ii) accelerate, fund or secure the vesting or payment of compensation or benefits under any Company Benefit Plan, in each case except for the entry into of employment agreements with new hires in the Ordinary Course of Business or as required by any Company Benefit Plan as in effect on the date of this Agreement; (r) except as required by GAAP or applicable Law, make a change in its fiscal year, revalue any of its material assets or make material changes in financial or Tax accounting methods, principles or practices; (s) make any material election with respect to Taxes (other than elections that are consistent with past practice), including any election to treat the 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 refund, or amend any material Tax Return; (t) amend, modify, extend or terminate any of the Lease Documents, or otherwise 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 a regular basis, except in the Ordinary Course of Business; (x) reduce, or otherwise modify in a materially adverse manner, the Company’s policies, standards and procedures for the issuance of credit to its customers, except in the Ordinary Course of Business; or (viiy) agree, whether or not in writing, to do any of the foregoing, or to authorize or announce an intention to do any of the foregoing.

Conduct of Business of Seller. During From the period from the Effective Date and continuing date of this Agreement until the earlier Closing Date, (a) the Seller shall: (i) maintain itself as a corporation duly incorporated and in good standing under the laws of the termination State of Delaware and conduct the Business in substantially the same manner as it historically has been conducted in the usual and ordinary course; and (ii) use reasonable commercial efforts to maintain and/or preserve the Business and employees, customers, suppliers and operations as an ongoing business in accordance with past practices and customs, except that Seller shall be permitted to close certain of its restaurant operations as described in Schedule 5.01(a); (b) without the prior written consent of Buyer, Seller shall not: (i) enter into any transaction (including commitments for capital expenditures except in accordance with Section 6.01) relating to the Business other than in the ordinary course of business; (ii) materially change the extent or character of the Business; (iii) sell, assign, transfer, lease or remove any material assets (tangible and intangible) from any facilities or premises of the Au Bon Pain Division, unless such assets are replaced before the Closing Date with similar items of equal quality and utility; (iv) pay to any current or former employee of the Business any compensation or other benefit that is not (A) required by a plan, trust, agreement or other arrangement in effect on or before the date hereof and disclosed in a schedule to this Agreement, or (B) salaries and bonuses in the ordinary course of business; (v) adopt, amend, or increase any benefits payable under, any employee benefit, welfare, compensation, or other "fringe benefit" plan, trust, agreement or arrangement, including any thrift, pension, savings, retirement, stock bonus, stock option, stock purchase, profit sharing, group insurance, medical reimbursement, deferred compensation, or other similar plan, including any Benefit Plan as defined in Section 3.21, in each such case such that any such action will not be binding upon or create any liability or obligation of ABPH prior to or after the Closing, except that the Seller may increase annual compensation to employees of the Au Bon Pain Division with an annual salary of less than $50,000 in the ordinary course of business on a basis consistent with past practices; (vi) discontinue or materially diminish any insurance coverage applicable to the Business; (vii) cancel or compromise any material legal right or claim of or debts owed to Seller in respect of the Business; (viii) enter into any non-competition, non-solicitation or indemnification agreements with any Person, the terms of which shall be binding upon ABPH after the Closing; (ix) incur or suffer to exist any indebtedness of or Encumbrance upon any assets of Seller which shall constitute a liability of ABPH after the Closing, except: (1) to the extent incurred pursuant to contracts entered into on or prior to the date hereof; or (2) which otherwise is incurred in the ordinary and usual course of business; or (3) which shall be discharged on or prior to the Closing Date; or (4) which is contemplated by any of the Transaction Documents to be incurred prior to the Closing Date; (i) mortgage, pledge or subject to any Encumbrance any of its assets; (ii) cancel or compromise any material claim of or material debts owed to it in respect of the Business; (iii) except in the ordinary course of business, sell, lease or transfer any of the assets of the Business; (iv) sell, assign or transfer any of the Intellectual Property of the Business; (v) pay any dividends in respect of its capital stock; (vi) increase any salaries or bonuses of its employees for any employee with an annual salary of $50,000 or higher; (vii) materially change its accounting or cash management policies and practices; (viii) enter into any transactions with any of its Affiliates except in the ordinary course of business or as may otherwise be contemplated by this Agreement and the ClosingSchedules hereto or (ix) unless otherwise agreed upon by both Buyer and Seller upon mutually acceptable terms and conditions, subject commence the conversion or remodeling of any of its bakery/cafes in accordance with its ABP2000 program; (xi) enter into any amendments for any of its store leases to be transferred to ABPH in connection with the limitations set forth hereinRestructuring which would have the effect of shifting the economic impact of such amendments from the first year of such lease immediately following the Closing into subsequent years so as to avoid any Lease Fee Adjustment that would otherwise result from such amendment; or (xii) agree to do, or acquiesce in, any of the foregoing acts. (c) the Seller shallshall cause ABPH to, and Seller Parent shall cause Seller to, ABPH shall: (i) maintain itself as a corporation duly incorporated and 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 good standing under its state of incorporation and conduct its Business in the Ordinary Course of Business same manner as it historically has been conducted in all material respects, the usual and ordinary course; and (ii) use reasonable commercial efforts to maintain the Property and/or preserve its assets 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 accordance with past practices and policies customs; and (iii) not make any change or amendment to preserve intact its present business organizationcertificate of incorporation or bylaws. (d) without the prior written consent of Buyer, keep available the services Seller shall not permit ABPH to: (i) enter into any transaction other than in the ordinary course of its present officers and key employees and preserve its relationships business; (ii) enter into any transaction with customersany Affiliate, employeesexcept as otherwise provided for herein, suppliersor any transaction which is not at arms-length with any unaffiliated Person; (iii) wind-up, distributorsdissolve, and others having business dealings liquidate (completely or partially), acquire any capital assets, other than in the ordinary course of business, merge or consolidate into or with it in all any other person, or sell, lease, exchange, transfer, or otherwise dispose of, or grant to any person a right or option to lease, acquire, or purchase any material respects. Without limiting the generality amount of the foregoingassets of ABPH or the Au Bon Pain Division (including any part of them or any interest therein), except as expressly contemplated by this Agreement or as disclosed in Schedule 7.1 hereof, during the period from the Effective Date and continuing until the earlier of the termination of this Agreement and the Closing, without the written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), Seller agrees that it shall not, and Seller Parent agrees that it shall cause Seller not to: (i) sell, pledge, lease, license, dispose of, abandon, grant, encumber or otherwise authorize or permit the sale, pledge, disposition, grant or Encumbrance (other than Permitted Encumbrances) of all or any portion of, or any direct or indirect interest in, the Property, except in the Ordinary Course of Business and except as set forth on Schedule 7.1; (ii) cause or permit the Property to be subjected to, or permit to exist on the Property, any Lien or Encumbrance, other than Permitted Encumbrances; (iii) fail to maintain the existing insurance coverage of all types relating to the Property (provided, however, in the event that any such coverage shall be terminated or lapse, Seller may procure substitute insurance policies in the Ordinary Course of Business)Agreement; (iv) fail to make capital expenditures at sell, assign, transfer, lease or remove or suffer any material uninsured casualty loss of any material assets (tangible and intangible) from ABPH or the Property required under Au Bon Pain Division facilities or premises, unless such assets are replaced before the Closing Date with similar items of equal quality and utility and without incurring any Gaming Law indebtedness or by any Gaming AuthorityEncumbrance; (v) close issue any shares of capital stock of ABPH or shut down the Business any securities convertible into or the Property, except exercisable or exchangeable for such closures capital stock or shutdowns which are (i) required by action, order, writ, injunction, judgment or decree or otherwise required by Legal Requirements, (ii) due options to acts of God purchase capital stock or other force majeure eventsrights in respect of any of the foregoing; or (iii) provided, however, ABPH may issue to Seller shares of its capital stock in consideration of the Ordinary Course of BusinessSeller assigning its interest in certain leases, contracts and assets to ABPH pursuant to the Restructuring contemplated by Section 5.06; (vi) seek declare, set aside, pay or make any zoning dividend or land use changes other distribution or payment with respect to the Property; orto, or redeem, purchase, or otherwise acquire, split, combine, or reclassify, any shares of their capital stock or otherwise change their capital structure; (vii) agreediscontinue or materially diminish any insurance coverage applicable to them; (viii) cancel or compromise any material contract of, whether or not legal right or claim of or debts owed to, ABPH or the Au Bon Pain Division; (ix) enter into any non-competition, non-solicitation or indemnification agreements with any third Person, the terms of which shall survive the Closing Date; (x) incur or suffer to exist any indebtedness of or Encumbrance upon any assets of any of ABPH or the Au Bon Pain Division, except: (1) to the extent incurred pursuant to contracts entered into by Seller or ABPH on or prior to the date hereof; or (2) which otherwise is incurred in writing, the ordinary and usual course of business; or (3) which shall be discharged on or prior to do the Closing Date; or (4) which is contemplated by any of the foregoingTransaction Documents to be incurred prior to the Closing Date. (xi) agree to do, or to authorize or announce an intention to do acquiesce in, any of the foregoingforegoing acts.