Common use of Conduct of Business Pending the Closing Clause in Contracts

Conduct of Business Pending the Closing. The Company covenants and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries to, (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice; (iv) use its reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except as expressly contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayed: (a) amend the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement; (b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit Agreement; (c) make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereof; (d) take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or in the ordinary course of business.

Conduct of Business Pending the Closing. The Company covenants and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Stockholders Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors to be appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries to, (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice; (iv) use its reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except as expressly contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayed: (a) amend the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement; (b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit Agreement; (c) make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereof; (d) take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or in the ordinary course of business.

Conduct of Business Pending the Closing. (a) The Company covenants and agrees that, during the period from that between the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writingEffective Time, (B) except as set forth in Section 6.1 5.1(a) of the Company Disclosure Schedule or (C) Letter and except for those any actions specifically set forth in Sections 2.06(i), (ii) required under this Agreement or (iii) as required by applicable Law or the regulations or requirements of the Restated Governance AgreementNasdaq Stock Market, unless Parent shall otherwise agree in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directorswriting, the Company shallwill, and shall will cause each of its Significant Subsidiaries Company Subsidiary to, : (i) conduct carry on its business only in the usual and ordinary course of business in substantially the same manner as heretofore conducted; (ii) pay its Taxes when due, except when the failure to do so would not individually or in the aggregate reasonably be expected to result in a fine or penalty; (iii) pay and perform other obligations when due, except when the failure to do so would not individually or in the aggregate reasonably be expected to result in a Material Adverse Effect; (iv) use its reasonable best efforts consistent with past practice; practice and policies to preserve substantially intact its present business organization; (iiv) use reasonable best efforts to preserve keep available the services of its current officers and other key employees and maintain its assets relations and properties and its relationships goodwill with its all suppliers, customers, supplierslandlords, advertiserscreditors, licensors, licensees, distributors, agentsresellers, officers and contract manufacturers, employees and other persons Persons having material business relationships with which it has significant business relationships; the Company and the Company Subsidiaries, except in each case where the failure to do so would not individually or in the aggregate reasonably be expected to result in a Material Adverse Effect; (iiivi) promptly notify Parent in writing of (A) any notice from any Person alleging that the consent of such Person is or may be required in connection with any of the Transactions and (B) any legal proceeding commenced, or, to the knowledge of the Company, threatened against, relating to, involving or otherwise affecting any of the Company or the Company Subsidiaries that relates to the Merger, excluding any threats of litigation in the form of press releases issued by or announcements on internet sites of plaintiff law firms; (vii) use its reasonable best efforts to maintain keep in full force all Insurance Policies (other than any such policies that are immediately replaced with substantially similar policies), provided that if it is unable to do so, it shall notify Parent at least 20 days before such policies terminate or otherwise lapse; and (viii) to the extent reasonably requested by Parent and permitted under applicable Law, cause the officers and other key employees of the Company and the Company Subsidiaries to communicate with Parent either directly or through counsel regarding the results of operations and all material developments in or relating to the Company and any Company Subsidiary, subject to any limitations advised by counsel to the Company in connection with applicable antitrust and competition Laws. (b) Without limiting the foregoing, except as set forth in Section 5.1(b) of the Company Disclosure Letter and except for any actions required under this Agreement or as required by applicable Law or the regulations or requirements of the Nasdaq Stock Market, unless Parent shall otherwise agree in writing (which agreement in the case of clauses (xii) and (xvii) (insofar as it relates to clause (xii)) below shall not be unreasonably withheld, delayed or conditioned), the Company shall not, and shall cause the Company Subsidiaries not to: (i) except as required by Law, amend its certificate of incorporation or bylaws or equivalent organizational documents; (ii) accelerate the vesting of any Company Option; (iii) issue, deliver, sell, grant or authorize the issuance of any Equity Interests in the Company or any Company Subsidiary, or securities convertible into, or exchangeable or exercisable for, any such Equity Interests, or any rights of any kind to acquire any such Equity Interests or such convertible or exchangeable securities, other than the issuance of Shares upon the exercise of Company Options outstanding on the date hereof; (iv) sell, pledge, dispose of, transfer, lease, license, or encumber any material property or assets of the Company or any Company Subsidiary, except pursuant to existing Contracts or the sale of goods in the ordinary course of business consistent with past practice of the Company and the Company Subsidiaries; (v) declare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock; (vi) reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its Equity Interests; (vii) merge or consolidate the Company or any Company Subsidiary with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary; (viii) acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or any series of related transactions any Equity Interests in any Person or any business or division of any Person or all or substantially all of the material assets it owns of any Person (or uses business or division thereof); (A) except for any revolving credit borrowings consistent with the borrowing forecast included as part of Section 5.1(b) of the Company Disclosure Letter, incur or assume any indebtedness or issue any debt securities; (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person; (C) make any loans, advances or capital contributions to, or investments in, any other Person, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practice; or (ivD) use its reasonable best efforts cancel any indebtedness owed to preserve the goodwill and ongoing operations Company or any Company Subsidiary of its businessmore than $25,000 or waive any Subsidiary claims or rights of substantial value; (v) maintain its books and records except, in each case, other than in the usualordinary course of business; (x) hire or engage any employees, regular consultants or contractors, or encourage any employees, consultants or contractors to resign from the Company or any of the Company Subsidiaries, or promote any employees or change the employment status or titles of any employees, except for (A) the hiring of employees based on planned or current searches underway and ordinary manner, on a basis consistent with past practice; and (vilisted in Section 5.1(b) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except as expressly contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure ScheduleLetter, between (B) hiring replacement employees to fill existing positions that have become vacant after the date of this Agreement and Agreement, at the Closingsame aggregate compensation, the Company shall not, and shall cause each or (C) engagements of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld consultants or delayed: (a) amend the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement; (b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings contractors in the ordinary course of business as permitted under the Credit Agreementat compensation rates comparable to other consultants or contractors at similar levels and pursuant to arrangements that can be terminated without penalty on not more than 30 days notice; (cxi) make any declaration, setting aside except to the extent required by applicable Law or payment the existing terms of any dividend or other distribution with respect toCompany Benefit Plan, any existing agreement or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required retention program established by the terms thereof; (d) take any action that is reasonably likely to result Company Board in (i) any of connection with the representations transactions contemplated by this Agreement and warranties set forth disclosed in Article III (as modified by any section Section 3.12 of the Company Disclosure Schedule relating theretoLetter: (A) becoming false or inaccurate in any material respect except as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a5.1(b) of the Company Disclosure Letter, increase wages, bonuses or other compensation, remuneration or benefits payable or to become payable to its directors, officers or employees; (B) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or employee of the Company or any Company Subsidiary, or establish, grant, adopt, enter into or amend any bonus, profit sharing, thrift, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan or agreement for the benefit of any director, officer or employee; or (bC) not being satisfiedother than as expressly provided in this Agreement, take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan; (exii) amendmake any Tax election, modifysettle or compromise any liability for Taxes, waivechange any method of Tax accounting, terminate or otherwise alter in file any material respect the provisionsamended Tax Return, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any an extension or waiver of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers statute of limitations with respect to the Credit Agreementassessment or determination of Taxes, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take enter into any other action closing agreement with respect to the Credit Agreement any Tax or surrender any right to claim a Tax refund; (xiii) make any change in accounting policies or procedures, other than as required by GAAP; (xiv) terminate or permit any Company Permit to lapse, other than in accordance with past practice the terms and regular expiration of any Company Permit, or fail to apply on a timely basis for any renewal of any renewable Company Permit, except to the extent such termination, lapse or failure to apply for renewal would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect; (xv) modify or amend any Company Material Contract, Government Contract or Proposal, other than in the ordinary course of businessbusiness consistent with past practice provided that the aggregate impact of all such ordinary course modifications or amendments (A) would not reasonably be expected to result in a decrease in consolidated revenue of more than $100,000 or a decrease in consolidated net income of more than $20,000 for the Company and the Company Subsidiaries in any fiscal quarter or a decrease in consolidated revenue of more than $200,000 or a decrease in consolidated net income of more than $40,000 over the remaining life of any single Company Material Contract or Government Contract or Proposal and (B) would not reasonably be expected to result in a decrease in revenue from such Company Material Contract or Government Contract or Proposal by more than 20% over its remaining life; (xvi) (x) settle any litigation that would require payment of more than $100,000 or require the imposition of any restrictions on the business of the Company or any Company Subsidiary, or settle any investigation pending with any Governmental Entity or (y) settle any litigation or threatened litigation relating to or arising out of the proposed Merger or the transactions contemplated by this Agreement or seeking an injunction with respect thereto (“Transaction Litigation,” which shall be governed by this clause (y) only and not clause (x)), without the consent of the Parent, which consent in the case of this clause (y) will not be unreasonably withheld, conditioned or delayed; or (xvii) authorize or enter into any Contract to do any of the foregoing. With respect to any Transaction Litigation, the Company will cooperate with Parent to permit Parent to participate in the defense, negotiation and settlement thereof. Parent will, promptly following the date hereof, designate one individual from whom the Company may seek written approval to undertake any actions not permitted to be taken under this Section 5.1, and will ensure that such person will respond, on behalf of Parent, to the Company’s requests in an expeditious manner but in any event, no later than two Business Days from the Company’s written request.

Conduct of Business Pending the Closing. The Company covenants and agrees that(a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during the period from Interim Period, Seller will cause the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries Companies to, : (i) conduct its operate the Facilities and their business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice; practices in all material respects; (ii) promptly notify Buyer of any breach of any representation, warranty, covenant or agreement of Seller made hereunder or any Material Adverse Effect of which Seller has Knowledge; (iii) (A) make Capital Expenditures and continue environmental remediation expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) (other than the Capital Expenditures described in clauses (B) and (C) following), (B) subject to NYISO and ConEd approval, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the Xxxx 00 Outage for November and December of 2005, and (C) at Seller’s election, make Capital Expenditures substantially in accordance with the budget attached as Schedule 6.02(a)(iii) with respect to Capital Expenditures scheduled for the Xxxx 00 Outage for March and April of 2006; (iv) use its reasonable best efforts to preserve the goodwill pay Taxes as they come due and ongoing operations of its businesspayable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); and (v) maintain its books use their commercially reasonable efforts to (A) preserve their present business operations, organization (including management) and records in goodwill with respect to the usualFacilities, regular (B) preserve their present relationship with Persons having business dealings with respect to the Facilities (including, without limitation, customers and ordinary manner, on a basis consistent with past practice; suppliers) and (viC) comply to the extent allowed by the applicable Governmental Authority, allow Buyer to participate in all material respects meetings with applicable Laws. Notwithstanding Governmental Authorities regarding the foregoing and except Facilities. (b) Except as expressly otherwise contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investorsin Schedule 6.02 or as consented to by Buyer in writing, which consent shall not be unreasonably withheld withheld, conditioned or delayed, and except for matters relating to the Excluded Assets, during the Interim Period Seller shall not (with respect to the Companies), shall cause the Non-Company Affiliates not to (with respect to the Companies), and cause the Companies not to: (ai) amend other than the Certificate Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of Incorporation or bylaws or other organizational documents except as contemplated by this Agreementthe Purchased Assets; (bii) become liable amend, modify, enter into, grant waiver of any material term of, or give any material consent with respect to, any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date); (iii) except in respect of Capital Expenditures permitted by Section 6.02(b)(iv), enter into, terminate or amend any guarantee Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing without further liability to the Companies); (iv) commit to incur Capital Expenditures after the Closing Date in excess of the applicable amount shown on Schedule 6.02(b)(iv); (v) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts (or Contracts entered into after the Execution Date that would be Material Contracts if entered into prior to the Execution Date) or the Terminated Contracts, incur, create, assume or otherwise become liable in respect for Indebtedness or issue any debt securities or assume or guarantee the obligations of any debtother Person; (vi) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person; (vii) issue or sell any partnership interests or securities, or rights to acquire or convertible into, partnership interests or securities, of either Company; (viii) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations; (ix) (A) hire or promote any employee, (B) except with respect to increases in compensation that, but for guarantees the timing of the grant thereof, are in the ordinary course of business, grant any increase in the compensation or borrowings benefits of any employee, (C) establish any new compensation or Benefit Plans, (D) amend or modify any Company Plan, (E) amend or modify any Seller Plan insofar as any such amendment or modification relates solely to Affiliate Employees or former employees, officers or directors of the Companies, or (F) enter into or modify any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as permitted under of the Credit AgreementExecution Date (including the Collective Bargaining Contract), except for promotions, hirings or changes relating to employees not covered by a Collective Bargaining Contract, in which case Seller shall consult with Buyer prior to any such promotions, hirings or changes; (cx) enter into, modify or terminate any labor or collective bargaining agreement of either Company or, through negotiations or otherwise, make any declarationmaterial commitment or incur any material liability to any labor organizations, setting aside except that either Company may reasonably bargain and negotiate matters in good faith, as contemplated by the Collective Bargaining Contract and applicable Laws; (xi) implement any layoff of employees that could implicate the WARN Act; (xii) enter into any Contract under which either Company advances or payment of loans any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, amount to any of its capital stockdirectors, securities directly officers, and employees outside the ordinary course of business (xiii) enter into any settlement, conciliation or indirectly convertible into capital stocksimilar agreement, or debt instruments, except as required by the terms thereofperformance of which will involve payment after the execution of this Agreement of consideration in excess of $1,000,000; (dxiv) take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets; (xv) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (xvi) make any material change in its accounting principles, methods or policies, except as otherwise required by GAAP or make any material change in its risk management policies or internal controls that are less restrictive than those in effect on the Execution Date; (xvii) enter into any Contract that restrains, restricts, limits or impedes the ability of a Facility to conduct any business or line of business in any geographic area; (xviii) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Assigned Contract, (B) any Material Contract (or Contract entered into after the Execution Date that would be a Material Contract if entered into prior to the Execution Date) or (C) any Permit; (xix) enter into, modify or renew any material Contracts with respect to the sale of energy that will be performed after the Closing except that would not require the payment, individually or in the aggregate, of amounts in excess of $1,000,000; (xx) purchase any securities of any Person, except for short-term investments or cash equivalents made in the ordinary course of business consistent with past practices; (xxi) cancel, settle or compromise debts having a value in excess of $1,000,000 or waive claims or rights having a value in excess of $1,000,000; (xxii) enter into a fuel purchase, storage, transportation, option, swap or other arrangement with a term over one year; (xxiii) enter into an energy or capacity purchase, sale, exchange, option, swap, or other arrangement, or transmission arrangement with a term over one year or that would require credit support in an amount greater than $1,000,000; (xxiv) enter into any speculative energy or fuel transactions; (xxv) seek to lower any reference price or bid or cap price for energy or capacity that Astoria LP sells into the markets administered by the NYISO; (xxvi) make or revoke any material election with respect to Taxes or fail to pay any Taxes of the Companies as they become due and payable (except for Taxes being contested in good faith by appropriate proceedings and for which adequate reserves have been provided for in accordance with GAAP); (xxvii) amend or modify its Charter Documents; or (xxviii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of such emergency actions.

Conduct of Business Pending the Closing. The Company covenants 7.2.1 From and agrees that, during after the period from the date of this Agreement Effective Date and continuing until the earlier of the Closing Date and the termination of this Agreement pursuant to Section 6.3 (such period, the “Interim Period”) and unless Buyer shall otherwise consent or the Closing (A) unless the Investors otherwise agree in writing, Seller covenants and agrees to (Bin accordance with and subject to the Development Management Agreement, including Buyer’s obligation to pay for the “Seller Support Costs” as defined in the Development Management Agreement): (a) use commercially reasonably efforts to not take any action that could reasonably impair the development of and maintenance the Project, (b) use commercially reasonable efforts to protect the Project and maintain the Project Assets in good repair, (c) maintain insurance coverage in amounts adequate to cover the reasonably anticipated risks of the Company and consistent with Prudent Industry Practices, (d) use commercially reasonable efforts to cause the Company to maintain goodwill with suppliers, contractors, Governmental Authorities, consultants, advisors, any other counterparties to Project Contracts, and any other participants in the Project, (e) provide Buyer prompt notice of any material communication, document or information, and promptly deliver to Buyer any material communications, notices or other documents or writings from any Person, in each case regarding the Project that is received by, or is in the possession of, Seller or the Company and (f) otherwise reasonably cooperate with and support Buyer in the development of the Project and supply as promptly as practicable Buyer with any additional information or documentary material that is in Seller’s possession, and, at Xxxxx’s reasonable request, promptly execute such documents, that may be necessary or helpful to the Project. Buyer agrees that, except for Seller’s refusal or failure to make any introductions requested by Xxxxx to any counterparties to Project Contracts, Governmental Authorities, or other material participants in the Project within a reasonable period of time after Xxxxx’s written request, Seller shall not be in default of its obligation to provide cooperation and support pursuant to this Section 7.2.1 or pursuant to the Development Management Agreement unless Seller fails to provide the requested cooperation and support within a reasonable period of time after Xxxxx’s written request for same pursuant to this Section 7.2.1 or pursuant to the Development Management Agreement and Xxxxx has agreed to pay (and pays in advance, if required under the circumstances) for any Seller Support Costs that will be incurred in connection with Seller’s provision of such cooperation and support, as more particularly set forth in the Development Management Agreement. Except for payment of any Seller Support Costs that Xxxxx agrees to pay in advance or pay directly to any consultant, contractor or other third party engaged by Seller pursuant to this Section 6.1 7.2.1, Buyer shall reimburse Seller for such Seller Support Costs within thirty (30) days after receiving from Seller a request for payment, together with an invoice or other proof of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i)payment by Seller. For clarity, (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted any Seller Support Costs paid by Buyer pursuant to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries to, (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice; (iv) use its reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except as expressly contemplated by this Agreement or as set forth on Section 6.1 of the Development Management Agreement, shall be Development Costs under the Development Management Agreement 7.2.2 During the Interim Period, unless Xxxxx shall otherwise consent, agree in writing or otherwise cause to occur during the Interim Period pursuant to the Development Management Agreement, Seller covenants and agrees not to (and to cause its Affiliates and the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do ) take any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayedactions: (a) amend the Certificate of Incorporation merge, combine or bylaws or consolidate with any other organizational documents except as contemplated by this Agreemententity; (b) become liable in respect of issue, sell or transfer any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings equity interest in the ordinary course of business as permitted under the Credit AgreementCompany; (c) make acquire (by merger, consolidation or acquisition of stock or assets or otherwise) any declarationcorporation, setting aside or payment of any dividend partnership or other distribution with respect to, business organization or any repurchase, redemption, early repayment division thereof or other acquisition of, any collection of its capital stock, securities directly assets constituting all or indirectly convertible into capital stock, substantially all of a business or debt instruments, except as required by the terms thereofbusiness unit; (d) take any action that is reasonably likely to result sell, lease, mortgage, pledge, transfer or otherwise encumber, in (i) whole or in part, any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false Project Assets or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) allow any of the conditions Project Assets to the obligations of the Investors set forth in Section 5.2(a) or become subject to any Liens (b) not being satisfiedother than Permitted Liens); (e) amendchange, modifyalter, waive, terminate amend or otherwise alter in any material respect modify the provisions, terms corporate or conditions organizational documents of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; orCompany; (f) agree enter into any Contracts or arrangements relating to take the Project; (g) undertake any recapitalization, reorganization, liquidation, dissolution, winding up, or not maintain the Company’s existence as a limited liability company; (h) engage in any line of business other than the continued development of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to Project; (i) pay fees amend, modify or supplement any Project Contract, Obtained Permit or Permit Application; (j) enter into any transactions with any Affiliate of Seller relating to the lenders Project; (k) permit any Project Contract, Obtained Permit or Permit Application to lapse or terminate except at the expiration of its stated term (and in such a circumstance Seller shall timely to apply for a new, renewal or extension of any such Permit in consultation with Buyer); (l) incur any Liabilities in respect of the Project Assets; (m) amend any submissions to any Governmental Authority relating to the Project (including any applications for Permits, Permit modifications, or modifications to construction schedules) except in accordance with Section 7.2; (n) enter into any compromise or settlement of any Proceeding relating to the Company or the Project Assets; (o) permit any drawings under any Support Obligations, or commit a breach or default under any Support Obligations, or permit any Support Obligations to lapse, expire or be terminated, or make or permit any withdrawals of any Support Obligations posted in connection with any Project Contract; (p) cancel, waive, release or otherwise compromise any debt or claim or any right of significant value, in each case, in respect of the Credit AgreementCompany or the Project Assets; (q) (i) create, incur or assume any Indebtedness for borrowed money; (ii) enter into waivers with respect mortgage, pledge or otherwise encumber, incur or suffer to the Credit Agreementexist any Lien on any of its properties or assets, except for Permitted Liens, (iii) amend create or assume any Indebtedness, except accounts payable and other Liabilities incurred under the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or in the ordinary course of business.Contracts,

Conduct of Business Pending the Closing. The Company covenants and agrees that, during (a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries toInterim Period, (i) conduct Buyers shall use their respective commercially reasonable efforts to continue to operate the Acquired Assets in accordance with past practices and the Co-Owner Agreements and Fuel Agreement and (ii) except as otherwise contemplated by this Agreement or with the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed, the Buyers shall not make any material changes in their accounting systems, policies, principles or practices related to the Facilities or Seller’s ownership share of the Facilities, other than changes required by Law or changes which would not alter its business only methodology for valuing the assets comprising the Pre-Paid Amount or for calculating Facility-related costs and Seller’s share thereof. (b) During the Interim Period, the Buyers shall continue to provide monthly invoices with respect to Seller’s ownership share (determined pursuant to the Fuel Agreement and Operation Agreements) of the Fuel Costs, Outstanding Fuel and O&M Costs, Outage Costs, and Outstanding Prorated Property Taxes. (c) During the Interim Period, Seller shall (i) comply with its obligations under the Co-Owner Agreements and other Assumed Contracts and, except as contemplated by the Restructuring, otherwise continue to own the Acquired Assets in the ordinary course and of business consistent with past practice; practices and (ii) use reasonable best efforts not create any Encumbrances on its Interests, except for Permitted Encumbrances. (d) The Parties acknowledge that, this Agreement is not intended to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all modify or amend in any way any of the material assets it owns provisions of the Co-Owner Agreements or uses Fuel Agreement, except as provided herein as of Closing. (e) During the Interim Period, Seller shall continue to participate in the Base Residual Auction for PJM capacity in the ordinary course of business consistent with past practice; (iv. Section 2.2(m) use its reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except as expressly contemplated by this Agreement or as set forth on Section 6.1 of the Company Seller Disclosure ScheduleSchedule will be updated to reflect these transactions, between following the date result of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayed: (a) amend the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement; (b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit Agreement; (c) make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereof; (d) take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1auction. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or in the ordinary course of business.Americas 92513545

Conduct of Business Pending the Closing. The Company covenants and agrees that(a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during the period from Interim Period, Seller will cause the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries Companies to, : (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses operate in the ordinary course of business consistent with past practicepractices in all material respects; (ii) use their commercially reasonable efforts to (A) preserve its present business operations, organization (including, without limitation, management) and goodwill of the Companies and (B) preserve its present relationship with Persons having business dealings with the Companies (including, without limitation, customers and suppliers); (iii) determine the cost of renewing the Pollution Legal Liability Policy as it applies to Erie for a term of one year and, at Buyer’s direction, and at the Companies’ expense, so renew such policy, with Seller named as an additional insured; and (iv) use its reasonable best efforts file, or ensure that Cxxx Street is in a position to preserve the goodwill and ongoing operations of its business; file, Cxxx Street’s market-based rate triennial report with FERC by October 1, 2004. (vb) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except Except as expressly otherwise contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investorsin Schedule 6.02 or as consented to by Buyer, which consent shall not be unreasonably withheld withheld, conditioned or delayed, during the Interim Period, Seller will not, and will cause the Companies not to: (ai) amend other than the Certificate Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of Incorporation or bylaws or other organizational documents except as contemplated by this Agreementthe Purchased Assets ; (bii) become liable grant any waiver of any material term under, or give any material consent with respect to, any Material Contract ; (iii) except in respect of Capital Expenditures required by Section 6.02(a), enter into, terminate or amend any guarantee Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing); (iv) incur Capital Expenditures in excess of the applicable amount shown on Schedule 6.02(b)(iv), (v) [intentionally omitted]; (vi) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts or the Terminated Contracts, incur, create, assume or otherwise become liable in respect for indebtedness or issue any debt securities or assume or guarantee the obligations of any debtother Person; (vii) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person; (viii) issue or sell any partnership interests or securities of any Company, or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of any Company; (ix) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations; (x) purchase any securities of any Person, except for guarantees short-term investments or borrowings cash equivalents made in the ordinary course of business as permitted under the Credit Agreementconsistent with past practices; (cxi) cancel any debts or waive any claims or rights having a value in excess of $500,000; (xii) make or revoke any declarationmaterial election with respect to Taxes of or relating to any Company or the Purchased Assets or settle or compromise any material claim, setting aside action, suit, litigation, proceeding, arbitration, investigation, audit or payment controversy with respect to Taxes of or relating to any Company or the Purchased Assets that could reasonably be expected to have a material effect on the Companies or the Purchased Assets after the Closing; (xiii) amend or modify its Charter Documents; (xiv) except for transfers of cash with respect to which corresponding Intercompany Receivables or Intercompany Payables have been created or correspondingly adjusted or transfers of cash in exchange for goods and services pursuant to a Material Contract listed on Schedule 4.08(x) with Seller or a Non-Company Affiliate, make any transfers of cash to Seller or a Non-Company Affiliate; provided, further, that the Companies shall not directly pay any principal of or interest or fees on indebtedness owed by Seller or any Non-Company Affiliate without the creation of an equivalent Intercompany Receivable or a corresponding adjustment of a corresponding Intercompany Payable; (xv) record accounting entries to Intercompany Payables or Intercompany Receivables with respect to which the offsetting entry is recorded to shareholder equity or partner’s capital; (xvi) subject to Section 2.02(c), declare, set aside, make or pay any dividend or other distribution with in respect toof the capital stock or partnership interests of any Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or any repurchase, redemption, early repayment or other acquisition ofownership interests in, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereofCompany; (dxvii) take effect any action that is reasonably likely to result recapitalization, reclassification, stock split or like change in the capitalization of any Company; (xviii) (i) hire or promote any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreementemployee, (ii) enter into waivers except with respect to increases in compensation that, but for the Credit Agreementtiming of the grant thereof, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or are in the ordinary course of business, grant any increase in the compensation of any employee, (iii) establish any new compensation or benefit plan or arrangement, (iv) amend or modify any Company Plan or Seller Plan insofar as any such amendment or modification to a Seller Plan relates solely to employees of the Companies, or (v) enter into any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract); (xix) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of the Companies; (xx) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (xxi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any of its Subsidiaries; (xxii) make any material change in its accounting or Tax reporting principles, methods or policies, except as otherwise required by GAAP; (xxiii) enter into any Contract that restrains, restricts, limits or impedes the ability of any Company to compete with or conduct any business or line of business in any geographic area; (xxiv) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property license or (B) Company Permit; (xxv) enter into a Contract with any Affiliate; (xxvi) permit any Company to enter into any material Contract or to enter into, modify or renew any material Contract with respect to the sale of energy which could bind the Companies after September 30, 2003; or (xxvii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of any such emergency actions taken outside the ordinary course of business consistent with past practices.

Conduct of Business Pending the Closing. The Company covenants and agrees that, during From the period from the date of this Agreement and continuing Signing Date until the earlier to occur of the termination of this Agreement Closing or the Closing (A) unless the Investors otherwise agree in writingtermination hereof, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries to, (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice; (iv) use its reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except as expressly required or contemplated by the transactions contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure ScheduleAncillary Agreements, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, or otherwise consented to by Buyers in writing (which consent shall not be unreasonably withheld withheld, conditioned or delayed), each Seller shall: (a) amend operate the Certificate Business in the Ordinary Course of Incorporation or bylaws or other organizational documents except as contemplated by this AgreementBusiness; (b) become liable in respect of any guarantee or incuruse commercially reasonable efforts to keep the Business and Assets substantially intact, assume or otherwise become liable in respect of any debtincluding the present operations, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit Agreementphysical facilities, working conditions and relationships with dealers, vendors, suppliers, customers and Governmental Entities; (c) make any declarationuse commercially reasonable efforts to operate the Business and own and use the Assets in compliance, setting aside or payment of any dividend or other distribution in all material respects, with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereofall applicable Laws; (d) take not sell, lease or otherwise transfer or dispose of any action of the Assets, except in the Ordinary Course of Business; (e) use commercially reasonable efforts to maintain all qualifications of such Seller (including Permits) that is reasonably likely are required for it to result own the Owned Real Properties or to lease the Leased Real Properties or to carry on the Business in accordance with Section 5.2(a); (f) except as set forth on Schedule 5.2(f), use commercially reasonable efforts to (i) maintain the Assumed Contracts in full force and effect, (ii) perform in all material respects its obligations thereunder and (iii) not enter into any agreement or other arrangement to extend, modify or renew any of the Assumed Contracts; (g) use commercially reasonable efforts to preserve all rights, privileges, franchises and other authority adequate for the conduct of the Business as currently conducted; (h) not enter into (i) any arrangement containing any limitation or restriction of any nature on the ability of the representations and warranties set forth Business to operate or compete, including exclusivity provisions, non-competition provisions, non-solicitation provisions or any other restrictive covenant, except in Article III connection with Section 5.1(a) or (as modified by ii) any section arrangement containing or granting most favored nations or similar pricing provisions; (i) not pledge or mortgage any of the Company Disclosure Schedule Assets or subject any of the Assets to any Lien (or permit any of the Assets to be subjected to any Lien) of any nature whatsoever, other than Permitted Liens or Liens that will be released at or prior to Closing; (j) use commercially reasonable efforts to maintain the Assets in the substantially the same operating condition and repair consistent with all applicable Laws and past practices, ordinary wear and tear excepted; (k) use commercially reasonable efforts to maintain in full force and effect without modification (other than in the Ordinary Course of Business) all material insurance policies relating theretoto the Business, the Assets or the Assumed Liabilities; (l) becoming false pay or inaccurate cause to be paid the debts, Taxes and other obligations of the Business prior to delinquency; (m) not materially change or modify its credit, collection or payment policies, procedures, or practices, including fail to pay or delay payment of payables or other liabilities, with respect to the Business; (n) not liquidate or dissolve; (o) not (i) grant any Station Operation Employees or Non-Operation Support Employees any loan or, except in the Ordinary Course of Business, increase in wages, salary, commissions, bonuses, severance, termination payments, pension or other compensation, increase in benefits, or accelerate the vesting or payment of any compensation or benefits for any Station Operation Employees or Non-Operation Support Employees or (ii) enter into any employment arrangements with any Station Operation Employees or Non-Operation Support Employees; (p) continue to conduct physical counts of all Inventory in the Ordinary Course of Business at each retail store included in the Assets; (q) not cancel or waive any rights related to the Assets or commence any material respect Proceedings relating to the Assets, except in each case as ofwould not reasonably be expected to impair or delay the transactions contemplated by this Agreement or adversely affect Buyers’ ownership or operation of the Business or Assets following Closing; (r) not relocate any of the Assets to a location other than at the Station Property at which such Assets are customarily located, other than in the Ordinary Course of Business; (s) maintain the books, accounts and records (financial, Inventory, repair and maintenance and otherwise) of the Business in the Ordinary Course of Business; (t) not (i) increase Inventory in an amount not in the Ordinary Course of Business, (ii) fail to replenish Inventory in the Ordinary Course of Business or (iii) make any commitment in excess of the normal, ordinary and usual requirements of the Business, consistent with the past practice methodologies customarily used by Sellers for determining such needs, or at any time prior toprice in excess of the then-usual current market price or upon terms and conditions more onerous to the Business than those consistent with past practices of Sellers; (u) except in the Ordinary Course of Business, not (i) make, change or revoke any material Tax election, settle or compromise any material Tax claim or Liability or enter into a settlement or compromise, or change (or make a request to any taxing authority to change) any material aspect of its method of accounting for Tax purposes that, in each case, would increase the Tax Liabilities of Buyer for any period (or portion thereof) after the Closing Date or (ii) prepare or file any of the conditions Tax Return (or any amendment thereof) other than any Tax Return that relates solely to Seller Taxes unless such Tax Return shall have been prepared in a manner consistent with past practice and Sellers shall have provided Buyers a copy thereof (together with supporting papers) at least three (3) Business Days prior to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfieddue date thereof; (ev) amend, modify, waive, terminate not merge (or otherwise alter in any material respect the provisions, terms be merged) with or conditions of into any other agreements between Person (including any other Seller), except as would not reasonably be expected to (i) impair or delay the Company and transactions contemplated by this Agreement, (ii) adversely affect Buyers’ ownership of the Business or the Assets following Closing or (iii) adversely affect the Buyer Indemnified Parties’ indemnification rights pursuant to Article VIII or the collectability thereof; (w) not enter into any agreements, programs or other arrangements with any other Person that has committed (i) any arrangement containing any limitation or restriction of any nature on the ability of the Business to purchase shares of Series A Preferred Stock and Series B Preferred Stock operate or compete, including exclusivity provisions, non-competition provisions, non-solicitation provisions or any agreements other restrictive covenant; (ii) any arrangement containing or granting most favored nations or similar pricing provisions; or (iii) except for actions in the Ordinary Course of Business, any action that would result in increased Liabilities to be entered into in connection therewiththird parties under an Assumed Contract; orand (fx) not authorize, contract, commit or otherwise agree whether in writing or otherwise to take any of the actions restricted by set forth in clause (c) or clauses (h)-(w) of this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or in the ordinary course of business5.2.

Conduct of Business Pending the Closing. The Company covenants and agrees that, during the period from From the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Closing, except (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or Schedule, (B) as required by Law, (C) except for those actions specifically set forth in Sections 2.06(i)as otherwise contemplated by this Agreement, (iiD) in connection with, or as a result of, the consummation of any of the Spin Transactions (including as a result of (x) the Hotel Assets ceasing to be managed or operated by the employees of Parent that currently manage and operate such Hotel Assets or (y) Parent ceasing (or taking steps to cease) its operations in the hotel or lodging industry generally) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be any action taken by Parent in furtherance thereof or (E) with the Company prior written consent of any Buyer (which consent shall not be unreasonably withheld, delayed or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors conditioned): (a) Prior to the Board of DirectorsClosing, the Company Parent shall, and shall cause each of its Significant Subsidiaries Selling Subsidiary, to, : (i) conduct its business only use, own or operate the Real Property, the Hotels and the other Hotel Assets in substantially the ordinary course same manner as currently conducted, including by (A) entering into any Management Agreements, Franchise Agreements or other Material Contracts (or, in each case, modifications, amendments, waivers and supplements thereto) to the extent consistent with the past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all operation of the material assets it owns applicable Real Property or uses Hotel and with the consent of any Buyer (provided that such Buyer’s consent shall not be required for any such modifications, amendments, waivers or supplements as may be affected automatically in accordance with such Material Contracts or are otherwise expressly contemplated by this Agreement), (B) causing the Managers and Franchisors to continue to operate the Hotels in the ordinary course of business consistent with past practicepractices, including by maintaining levels of Supplies, Consumables and Retail Inventories consistent with seasonally-adjusted past practices and (C) continuing to maintain the insurance currently carried by Parent or the applicable Selling Subsidiary with respect to the Hotels; and (ivii) use its reasonable best efforts Reasonable Efforts to preserve the goodwill each Selling Subsidiary’s (A) present operations and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; organization and (viB) comply in all material respects present relationships with applicable Laws. Notwithstanding Managers, Franchisors, Employees, landlords under the foregoing Ground Leases, Lenders, Occupants and except as expressly contemplated by this Agreement or as set forth on Section 6.1 of other Persons with whom the Company Disclosure Schedule, between the date of this Agreement and Selling Subsidiaries have similar relationships. (b) Prior to the Closing, the Company Parent shall not, and shall cause each of its Significant Subsidiaries Selling Subsidiary not to, do take any of the following without actions set forth in clauses (i) - (v) below: i. other than in the prior written consent ordinary course of business, subject any of the InvestorsReal Property, which consent shall not be unreasonably withheld or delayed: (a) amend the Certificate of Incorporation or bylaws Hotels or other organizational documents except as contemplated by this AgreementHotel Assets to any Lien other than Permitted Liens; (b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings ii. other than in the ordinary course of business as permitted under the Credit Agreement; (c) make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by pursuant to the terms thereof; (d) take any action that is reasonably likely to result in (i) of a Material Contract, sell, assign, license, transfer, convey, lease or otherwise dispose of any of the representations and warranties set forth Hotel Assets (other than the Real Property, which is addressed in Article III clause (as modified by any section of the Company Disclosure Schedule relating theretoiii) becoming false or inaccurate in any material respect as ofbelow); iii. sell, assign, or at any time prior to, the Closing Date or (ii) transfer any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfiedReal Property; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any iv. other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or than in the ordinary course of business, enter into, amend, terminate or renew any Material Contract (including all Management Agreements and Franchise Agreements), other than (A) any automatic amendments, terminations or renewals pursuant to the terms of any Material Contract or (B) terminations of Existing Loans (including by prepayment thereof), TRS Leases, Franchise Agreements, PILOT Agreements (to the extent related to the Real Property on which the Hilton Garden Inn Westbury is located) or Terminating Management Agreements; x. xxxxxx any material Legal Proceeding involving the Real Property or any Hotel or relating to the transactions contemplated by this Agreement or the Transaction Documents, other than settlements involving the payment of cash (and no ongoing restrictions on the Real Property or Hotels to be acquired directly or indirectly by either Buyer) for which Parent bears sole financial responsibility; vi. except for restorations or alterations required in the case of emergencies or material casualty or condemnation, make any material alterations to the Hotels without consent or approval of a Buyer; or vii. agree to do anything prohibited by this Section 6.1(b). (c) Notwithstanding anything in Section 6.1(a) or Section 6.1(b), in no event shall Parent be responsible for any action taken by any Manager or Franchisor, which such Manager or Franchisor is permitted to take pursuant to the terms of the applicable Management Agreement or Franchise Agreement without the consent or approval of the applicable Selling Subsidiary, and Parent’s failure to prevent such Manager or Franchisor from taking such action shall not, in any event, be deemed a breach of this Section 6.1.

Conduct of Business Pending the Closing. The Company covenants and agrees that, during From the period from the date of this Agreement and continuing Effective Date until the earlier of the termination of this Agreement or the Closing Closing, except (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or Schedule, (B) as required by Law, (C) except for those actions specifically set forth in Sections 2.06(i)as otherwise contemplated by this Agreement, (ii) or (iiiD) with the prior written consent of the Restated Governance AgreementBuyer (which consent shall not be unreasonably withheld, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company delayed or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors conditioned): (a) Prior to the Board of DirectorsClosing, the Company Seller shall, and shall cause each of its Significant Subsidiaries to, : (i) conduct its business only use, own or operate the Real Property, the Hotels and the other Hotel Assets in substantially the ordinary course and consistent with past practice; same manner as currently conducted, including by (iiA) use reasonable best efforts causing each Manager to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts continue to maintain all of operate the material assets it owns or uses Hotels in the ordinary course of business consistent with past practice; (iv) use its reasonable best efforts to preserve the goodwill practices, including by maintaining levels of Supplies, Consumables and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis Retail Inventories consistent with seasonally-adjusted past practice; and practices, (viB) comply in all material respects with applicable Laws. Notwithstanding causing each Manager to continue to maintain the foregoing and except as expressly contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayed: (a) amend the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement; (b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings Hotels in the ordinary course of business as permitted under consistent with past practices, including maintaining all improvements on the Credit Agreement; Real Property and all Furnishings substantially in the condition that they were in on the Effective Date (c) make any declarationsubject to Seller’s compliance with 6.3, setting aside or payment and compliance in all material respects with all requirements of any dividend or other distribution Governmental Authority), and (C) continuing to maintain the insurance currently carried by Seller with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by to the terms thereof;Hotels; and (d) take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of use Reasonable Efforts to preserve each Selling Subsidiary’s (A) present operations and organization and (B) present relationships with each Manager, Franchisors, Employees, landlords under the conditions to Ground Leases, Lenders, Occupants and other Persons with whom the obligations of the Investors set forth in Section 5.2(a) or Selling Subsidiaries have similar relationships. (b) Prior to the Closing, Seller shall not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing set forth in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to clauses (i) pay fees to the lenders under the Credit Agreement, – (iivi) enter into waivers with respect to the Credit Agreement, below: (iiii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or than in the ordinary course of business, subject any of the Real Property, Hotels or other Hotel Assets to any Lien other than Permitted Exceptions; (ii) other than in the ordinary course of business or pursuant to the terms of a Material Contract, sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Real Property, Hotels or other Hotel Assets; (iii) without Buyer’s prior consent (not to be unreasonably withheld or delayed), enter into any Management Agreements, Franchise Agreements, Material Contracts or similar arrangements (or, in each case, modifications, amendments, waivers and supplements thereto); (iv) without Buyer’s prior consent (not to be unreasonably withheld or delayed) except to the extent required in connection with any life safety event or to the extent that any such modifications to any Material Contract is terminable at Closing, enter into, amend, terminate or renew any Material Contract, other than (A) any automatic amendments, terminations or renewals pursuant to the terms of any Material Contract or (B) terminations of Existing Loans (including by prepayment thereof) or Operating Leases; (v) settle any material Legal Proceeding involving the Real Property or any Hotel or relating to the transactions contemplated by this Agreement or the Transaction Documents, other than settlements involving the payment of cash (and no ongoing restrictions on the Real Property or Hotels) for which Seller bears sole financial responsibility; or (vi) agree to do anything prohibited by this Section 6.1(b).

Conduct of Business Pending the Closing. The Company covenants and agrees that(a) During the Interim Period, during the period from the date of except (i) as required or otherwise expressly contemplated this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writingAgreement, (Bii) except as set forth in Section 6.1 6.02(a) of the Company Seller Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i)Schedule, (iiiii) as required under applicable Law, (iv) as required to prevent or mitigate an imminent threat or danger to life or property due to an emergency (but the Seller shall provide notice of such emergency to the Purchaser as soon as reasonably practicable upon the occurrence of such emergency) or (iiiv) with the prior written consent of the Restated Governance AgreementPurchaser (which consent shall not be unreasonably withheld, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company conditioned or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directorsdelayed), the Company shall, and Seller shall cause each of its Significant Subsidiaries to, Acquired Company to (iA) conduct its business only operate the Facilities in the ordinary course of business and in compliance in all material respects with all applicable Laws, material Permits and material Contracts (other than Affiliate Obligations) and (B) use its commercially reasonable efforts to (1) preserve, maintain and protect the assets and properties of such Acquired Company, (2) maintain its material Permits and material Contracts (other than any Affiliate Obligations), (3) maintain all material relationships with customers, suppliers and Governmental Entities, and (4) complete each of the maintenance activities referenced in the definition of “Maintenance Adjustment Amount” consistent with past practiceGood Industry Practices; provided that the completion of the maintenance activities in this clause (4) shall not be considered in determining whether the condition set forth in Section 7.02(a) has been satisfied. (b) Without limiting the foregoing, during the Interim Period, except (1) as required or otherwise expressly contemplated by this Agreement, (2) as set forth in Section 6.02(b) of the Seller Disclosure Schedule, (3) as required under applicable Law, (4) as required to prevent or mitigate an imminent threat or danger to life or property due to an emergency (but the Seller shall provide notice of such emergency to the Purchaser as soon as reasonably practicable upon the occurrence of such emergency) or (5) with the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), the Seller shall cause each Acquired Company to not: (i) sell, transfer, convey, abandon, cancel or otherwise dispose of any material assets, other than (A) sales, transfers, conveyances, abandonments, cancelations or other dispositions of obsolete fixtures, equipment and tangible personal property no longer used or useful in the business of the Acquired Companies in the ordinary course of business or (B) distributions by any Acquired Company to the Seller of cash and accounts receivable pursuant to Section 6.16(b); provided that such distributions are reflected in the calculation of the Net Working Capital of the Acquired Companies as of the Closing Date; (ii) use reasonable best efforts acquire any asset or property or make or commit to preserve and maintain its assets and properties and its relationships with its customersmake capital expenditures, suppliersin each case, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; in excess of $500,000 individually or $1,000,000 in the aggregate except to the extent set forth on Annex C; (iii) use its reasonable best efforts to maintain merge or consolidate with any other Person or acquire all or substantially all of the assets of any other Person; (iv) except for any Affiliate Obligation that is subject to Section 6.02(c), enter into, terminate, materially amend, grant any waiver of any material term under, grant any material consent with respect to, or fail to comply in any material respect with, any Material Contract (or any Contract that would be a Material Contract if in existence on the date hereof); (v) enter into or modify, terminate, cancel, renew or assign any material Permit, other than any material Permit that will expire prior to the Closing by its terms or the renewal of any material Permit in a timely fashion without material modifications to the terms of such material Permit, except as may be required by applicable Law; (vi) issue, reserve for issuance, pledge or otherwise encumber, redeem or sell any of its respective equity interests; (vii) liquidate, dissolve or otherwise wind up its business or operations; (viii) purchase any equity securities of any Person; (ix) amend or modify its respective Organizational Documents; (x) effect any recapitalization, reclassification or other change in its capitalization; (xi) engage in any new line of business; (xii) create, incur or assume any Indebtedness or issue debt securities, or grant or permit to exist any Lien on any of its assets it owns or uses properties (other than any Permitted Lien); (xiii) settle any Claim or compromise or settle any Liability, unless (A) the amount of such settlement or compromise does not exceed $1,000,000, individually, or $2,000,000, in the aggregate, for all such amounts under this Section 6.02(b)(xiii), (B) the payment of such amount, to the extent not paid prior to the Closing, is reflected in the calculation of the Net Working Capital of the Acquired Companies as of the Closing Date, (C) such settlement or compromise includes a full release of the Acquired Companies from all Liabilities, and (D) such settlement or compromise would not impose any restrictions on the conduct of the business of the Acquired Companies or require any admission of guilt by an Acquired Company; (xiv) cancel or materially change coverage under any Insurance Policy; (xv) except in the ordinary course of business consistent with past practice and current market practice; (iv) use its reasonable best efforts , grant any increase in the compensation or severance pay to preserve any Person who will be a Continuing Employee, except, in the goodwill and ongoing operations case of a material increase in severance pay, if the Seller or any of its business; Affiliates (vother than the Acquired Companies after the Closing) maintain will be solely responsible therefor, or adopt, enter into or materially amend any Benefit Plan in respect of any Person who will be a Continuing Employee; (xvi) make any change in its books and records Tax accounting or Tax reporting principles, methods or policies, make any new, or change any existing, election with respect to Taxes, amend any Tax Return, settle any Tax liability, enter into any Contract with respect to Taxes, enter into any settlement or closing agreement with respect to Taxes with any Taxing Authority, in each case, to the extent such change, election, settlement, Contract or agreement could reasonably be expected to give rise to a material adverse consequence to an Indemnified Purchaser Entity; (xvii) cause any Acquired Company to cease to be treated as a disregarded entity for federal income tax purposes; (xviii) make any changes in financial accounting methods, principles or practices (or change an annual accounting period), except insofar as may be required by a change in GAAP or applicable Law; (xix) enter into any reactive-power-related settlement at FERC for either of the Acquired Companies agreeing to a revenue requirement that is less than 90% of the revenue requirement in such Acquired Company’s Reactive Tariff or that imposes any non rate-related condition in the usualsettlement; or (xx) agree or commit to do any of the foregoing. (c) Prior to the Closing, regular the Seller shall cause (i) all Liabilities of each Acquired Company under each Affiliate Obligation to be terminated, any amount owed as a result of such termination to be discharged, and ordinary manner, on a basis consistent with past practice; the Acquired Companies to have no further Liabilities thereunder and (viii) comply all Liabilities of the Acquired Companies to the Seller Parties and their Affiliates to be terminated and discharged, in each case, to be effective as of the Closing. In the event that, after the Closing, any Acquired Company has any Liabilities under any Affiliate Obligation, upon the written request of the Purchaser, the Seller shall promptly cause all material respects with applicable Lawssuch Liabilities to be terminated and discharged, and the Acquired Companies shall have no Liabilities as a result of such termination or otherwise, irrespective of when such Liabilities arose. Notwithstanding the foregoing and except foregoing, this Section 6.02(c) shall not apply to any Contract entered into after the Closing or any Contract entered into prior to the Closing as expressly contemplated by this Agreement or as set forth on Section 6.1 of and in form and substance reasonably satisfactory to the Company Disclosure SchedulePurchaser, in either case, between any Acquired Company, on the date one hand, and any Seller Party or any of this Agreement and its Affiliates, on the other hand. (d) Prior to the Closing, the Company shall notSeller shall, and shall cause each of its Significant Subsidiaries not DPG and Xxxxxxxxx to, do any reasonably consult with the Purchaser in connection with the application for renewal of the following Xxxxxxxxx Facility’s Title V permit by (i) providing periodic updates to the Purchaser of material developments in connection with such application, (ii) sharing with the Purchaser notices, drafts, requests for information and other material correspondence to and from the Pennsylvania Department of Environmental Protection, (iii) notifying the Purchaser in advance of any material meetings, conference calls or other proceedings with the Pennsylvania Department of Environmental Protection in connection with such application and (iv) considering in good faith the Purchaser’s input in connection with such notices, drafts, request for information, correspondence, meetings, conference calls and proceedings. The Seller shall not agree to the finalization of such renewal of the Title V permit on terms that are materially less favorable, in the aggregate, to Xxxxxxxxx than those set forth in the existing Title V permit without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayed: (a) amend the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement; (b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit Agreement; (c) make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereof; (d) take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied;Purchaser. (e) amendPrior to the Closing, modifythe Seller shall, waiveand shall cause DPG and the Acquired Companies to, terminate or otherwise alter in any provide periodic updates to the Purchaser of material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into developments in connection therewithwith the submittal to and approval by PJM of a Fuel Cost Policy for each Acquired Company; orprovided, however, that none of the Seller, DPG or the Acquired Companies shall be required to provide Purchaser with any information related thereto that the Seller reasonably believes is commercially sensitive. (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing Nothing contained in this Section 6.1 shall in any way be deemed 6.02 is intended to restrict give the Purchaser the right to control or prohibit direct the Company's or its Subsidiaries' ability to (i) pay fees operations of the Acquired Companies prior to the lenders under the Credit Agreement, (ii) enter into waivers with respect Closing. Prior to the Credit AgreementClosing, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect Seller and the Acquired Companies shall exercise complete control and supervision over the Acquired Companies’ operations subject to the Credit Agreement limitations in accordance with past practice or in the ordinary course of businessthis Section 6.02.

Conduct of Business Pending the Closing. The Company covenants and agrees that, during (a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries toInterim Period, (i) conduct Buyers shall use their respective commercially reasonable efforts to continue to operate the Acquired Assets in accordance with past practices and the Co-Owner Agreements and Fuel Agreement and (ii) except as otherwise contemplated by this Agreement or with the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed, the Buyers shall not make any material changes in their accounting systems, policies, principles or practices related to the Facilities or Seller’s ownership share of the Facilities, other than changes required by Law or changes which would not alter its business only methodology for valuing the assets comprising the Pre-Paid Amount or for calculating Facility-related costs and Seller’s share thereof. (b) During the Interim Period, the Buyers shall continue to provide monthly invoices with respect to Seller’s ownership share (determined pursuant to the Fuel Agreement and Operation Agreements) of the Fuel Costs, Outstanding Fuel and O&M Costs, Outage Costs, and Outstanding Prorated Property Taxes. (c) During the Interim Period, Seller shall (i) comply with its obligations under the Co-Owner Agreements and other Assumed Contracts and, except as contemplated by the Restructuring, otherwise continue to own the Acquired Assets in the ordinary course and of business consistent with past practice; practices and (ii) use reasonable best efforts not create any Encumbrances on its Interests, except for Permitted Encumbrances. (d) The Parties acknowledge that, this Agreement is not intended to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all modify or amend in any way any of the material assets it owns provisions of the Co-Owner Agreements or uses Fuel Agreement, except as provided herein as of Closing. (e) During the Interim Period, Seller shall continue to participate in the Base Residual Auction for PJM capacity in the ordinary course of business consistent with past practice; (iv. Section 2.2(m) use its reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except as expressly contemplated by this Agreement or as set forth on Section 6.1 of the Company Seller Disclosure ScheduleSchedule will be updated to reflect these transactions, between following the date result of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayed: (a) amend the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement; (b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit Agreement; (c) make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereof; (d) take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or in the ordinary course of businessauction.

Conduct of Business Pending the Closing. The Company covenants (a) During the period from the date of this Agreement and agrees thatcontinuing through the Closing Date or the earlier termination of this Agreement pursuant to Section 8.1 hereof, except as expressly contemplated or permitted by this Agreement, or with the prior written consent of Thin Crust, which consent shall not be unreasonably withheld, conditioned or delayed, Deep Dish shall, and shall cause the Deep Dish Subsidiaries to, except as required by Law, (i) carry on its business in the ordinary course consistent with past practice in all material respects; (ii) use its commercially reasonable efforts to preserve its present business organization and relationships; (iii) use its commercially reasonable efforts to keep available the present services of its employees and independent contractors; and (iv) use its commercially reasonable efforts to preserve its rights, franchises, goodwill and relations with its customers and others with whom it conducts business. (b) During the period from the date of this Agreement and continuing through the Closing Date or the earlier termination of this Agreement pursuant to Section 8.1 hereof, except as expressly contemplated or permitted by this Agreement, or with the prior written consent of Deep Dish, which consent shall not be unreasonably withheld, conditioned or delayed, Thin Crust shall, and shall cause the Thin Crust Subsidiaries to, except as required by Law, (i) carry on its business in the ordinary course consistent with past practice in all material respects; (ii) use its commercially reasonable efforts to preserve its present business organization and relationships; (iii) use its commercially reasonable efforts to keep available the present services of its employees and independent contractors; and (iv) use its commercially reasonable efforts to preserve its rights, franchises, goodwill and relations with its customers and others with whom it conducts business. (c) Without limiting the generality of Sections 6.1(a) and 6.1(b), during the period from the date of this Agreement and continuing until through the Closing Date or the earlier of the termination of this Agreement or pursuant to Section 8.1 hereof, neither Deep Dish nor Thin Crust shall, and Deep Dish shall cause the Closing (A) unless Deep Dish Subsidiaries and Thin Crust shall cause the Investors otherwise agree in writingThin Crust Subsidiaries not to, (B) except as set forth in Section 6.1 without the prior written consent of the Company Disclosure Schedule other party, which consent shall not be unreasonably withheld, conditioned or delayed: (Ci) except for those actions specifically set forth in Sections 2.06(i)issue or agree to issue any Equity Securities, or reclassify, exchange, recapitalize, or otherwise amend the terms of its Equity Securities, other than issuances of Equity Securities upon the exercise of Deep Dish Options or Thin Crust Options, as applicable, outstanding as of the date hereof, (ii) declare or make any payments or distributions to stockholders or members or purchase or redeem any capital stock or membership interests, except for (A) distributions by Thin Crust and the Thin Crust Subsidiaries to pay Taxes through the Closing Date, and (B) distributions by the Deep Dish Subsidiaries to Deep Dish to pay Taxes through the Closing Date, (iii) of the Restated Governance Agreementincur any material Indebtedness, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries to, (i) conduct its business only other than in the ordinary course and of business, (iv) make or commit to make any material capital expenditures or capital additions not consistent with past practice; the current budget that has been previously delivered to the other party, (iiv) use reasonable best efforts acquire, commit to preserve and maintain its assets and properties and its relationships acquire or sell, assign, dispose of, mortgage, subject to any Lien or otherwise encumber or transfer any material asset or line of business, individually or in the aggregate, (vi) enter into any transactions with its customers, suppliers, advertisers, distributors, agents, officers and employees and their respective Affiliates other persons with which it has significant business relationships; (iii) use its reasonable best efforts than pursuant to maintain all written agreements existing as of the material assets it owns date hereof; provided, that any such written agreements may not be amended, restated, supplemented or uses modified prior to the Closing Date without the prior written consent of each of Deep Dish and Thin Crust, (vii) increase the compensation or other benefits (including any termination, severance, change of control bonus, equity incentive or similar compensation) payable to their respective employees, officers, directors, or service providers, other than (A) in the ordinary course of business consistent with past practice; practice or (ivB) use its reasonable best efforts pursuant to preserve written agreements with any Deep Dish Key Employees or Thin Crust Key Employees, as applicable, in existence on the goodwill date hereof and ongoing operations of its business; (v) maintain its books and records disclosed in the usualDeep Dish Disclosure Schedule or the Thin Crust Disclosure Schedule, regular and ordinary manneras applicable, on a basis consistent with past practice; and (viviii) comply in all material respects with applicable Laws. Notwithstanding except for the foregoing and except as Employment Agreements expressly contemplated by this Agreement (which, for the avoidance of doubt, shall not be amended, restated, supplemented, or as modified prior to the Closing Date without the prior written consent of each of Deep Dish and Thin Crust), enter into or amend any employment agreement or similar agreement, (ix) effect any internal promotions or changes in title of any personnel above a Director or comparable title, (x) enter into, amend, modify, accelerate or terminate any Deep Dish Material Contract or Thin Crust Material Contract; provided, that (1) Deep Dish and its Subsidiaries may amend, modify or terminate any Deep Dish Material Contracts with the Deep Dish Restaurant Clients and the Deep Dish Suppliers in the ordinary course of business, and enter into Contracts which would constitute such Contracts in the ordinary course of business, and (2) Thin Crust and its Subsidiaries may amend, modify or terminate any Thin Crust Material Contracts with the Thin Crust Restaurant Clients, the Thin Crust Corporate Clients and the Thin Crust Suppliers in the ordinary course of business, and enter into Contracts which would constitute such Contracts in the ordinary course of business, or (xi) take any other action that, if not listed on the applicable Schedule, would cause a breach of representations and warranties set forth on in Section 6.1 of 3.7 or 4.7, as applicable. (d) During the Company Disclosure Schedule, between period from the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayed: (a) amend the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement; (b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit Agreement; (c) make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereof; (d) take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, continuing through the Closing Date or (ii) the earlier termination of this Agreement pursuant to Section 8.1 hereof, none of Parent, DD Acquisition Sub, or TC Acquisition Sub will conduct any business activities or incur any liabilities, except as necessary in connection with this Agreement and consummation of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied;transactions contemplated hereby. (e) amendDuring the period from the date of this Agreement and continuing through the Closing Date or the earlier termination of this Agreement pursuant to Section 8.1 hereof, modify, waive, terminate Thin Crust Equityholder Corp. will not conduct any business activities or incur any liabilities other than those incidental to its holding of Thin Crust interests or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any with the consummation of the actions restricted transactions contemplated by this Section 6.1. Notwithstanding the foregoingAgreement and/or any Related Agreements; provided, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to that it is understood and agreed that that Thin Crust Equityholder Corp. may (i) pay fees make repurchases of its outstanding capital stock pursuant to Article IV, Section 4.8 of the lenders under certificate of incorporation of Thin Crust Equityholder Corp. (collectively, the Credit Agreement, “Permitted Repurchases”) and/or (ii) enter into waivers with respect declare and pay one or more dividends to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or in the ordinary course of businessThin Crust Equityholder Corp. Stockholders.

Conduct of Business Pending the Closing. The Company covenants and agrees that, during From the period from the date of this Agreement and continuing Signing Date until the earlier to occur of the termination of this Agreement Closing or the Closing (A) unless the Investors otherwise agree in writingtermination hereof, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries to, (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice; (iv) use its reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except as expressly required or contemplated by the transactions contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure ScheduleAncillary Agreements, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, or otherwise consented to by Buyers in writing (which consent shall not be unreasonably withheld withheld, conditioned or delayed), each Seller shall: (a) amend operate the Certificate Business in the Ordinary Course of Incorporation or bylaws or other organizational documents except as contemplated by this AgreementBusiness; (b) become liable in respect of any guarantee or incuruse commercially reasonable efforts to keep the Business and Assets substantially intact, assume or otherwise become liable in respect of any debtincluding the present operations, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit Agreementphysical facilities, working conditions and relationships with dealers, vendors, suppliers, customers and Governmental Entities; (c) make any declarationuse commercially reasonable efforts to operate the Business and own and use the Assets in compliance, setting aside or payment of any dividend or other distribution in all material respects, with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereofall applicable Laws; (d) take not sell, lease or otherwise transfer or dispose of any action of the Assets, except in the Ordinary Course of Business; (e) use commercially reasonable efforts to maintain all qualifications of such Seller (including Permits) that is reasonably likely are required for it to result own the Owned Real Properties or to lease the Leased Real Properties or to carry on the Business in accordance with Section 5.2(a); (f) except as set forth on Schedule 5.2(f), use commercially reasonable efforts to (i) maintain the Assumed Contracts in full force and effect, (ii) perform in all material respects its obligations thereunder and (iii) not enter into any agreement or other arrangement to extend, modify or renew any of the Assumed Contracts; (g) use commercially reasonable efforts to preserve all rights, privileges, franchises and other authority adequate for the conduct of the Business as currently conducted; (h) not enter into (i) any arrangement containing any limitation or restriction of any nature on the ability of the representations and warranties set forth Business to operate or compete, including exclusivity provisions, non-competition provisions, non-solicitation provisions or any other restrictive covenant, except in Article III connection with Section 5.1(a) or (as modified by ii) any section arrangement containing or granting most favored nations or similar pricing provisions; (i) not pledge or mortgage any of the Company Disclosure Schedule Assets or subject any of the Assets to any Lien (or permit any of the Assets to be subjected to any Lien) of any nature whatsoever, other than Permitted Liens or Liens that will be released at or prior to Closing; (j) use commercially reasonable efforts to maintain the Assets in the substantially the same operating condition and repair consistent with all applicable Laws and past practices, ordinary wear and tear excepted; (k) use commercially reasonable efforts to maintain in full force and effect without modification (other than in the Ordinary Course of Business) all material insurance policies relating theretoto the Business, the Assets or the Assumed Liabilities; (l) becoming false pay or inaccurate cause to be paid the debts, Taxes and other obligations of the Business prior to delinquency; (m) not materially change or modify its credit, collection or payment policies, procedures, or practices, including fail to pay or delay payment of payables or other liabilities, with respect to the Business; (n) not liquidate or dissolve; (o) not (i) grant any Station Operation Employees or Non-Operation Support Employees any loan or, except in the Ordinary Course of Business, increase in wages, salary, commissions, bonuses, severance, termination payments, pension or other compensation, increase in benefits, or accelerate the vesting or payment of any compensation or benefits for any Station Operation Employees or Non-Operation Support Employees or (ii) enter into any employment arrangements with any Station Operation Employees or Non-Operation Support Employees; (p) continue to conduct physical counts of all Fuels Inventory and non-fuel Inventory in the Ordinary Course of Business at each retail store included in the Assets; (q) not cancel or waive any rights related to the Assets or commence any material respect Proceedings relating to the Assets, except in each case as ofwould not reasonably be expected to impair or delay the transactions contemplated by this Agreement or adversely affect Buyers’ ownership or operation of the Business or Assets following Closing; (r) not relocate any of the Assets to a location other than at the Station Property at which such Assets are customarily located, other than in the Ordinary Course of Business; (s) maintain the books, accounts and records (financial, Inventory, repair and maintenance and otherwise) of the Business in the Ordinary Course of Business; (t) not (i) increase Inventory in an amount not in the Ordinary Course of Business, (ii) fail to replenish Inventory in the Ordinary Course of Business or (iii) make any commitment in excess of the normal, ordinary and usual requirements of the Business, consistent with the past practice methodologies customarily used by Sellers for determining such needs, or at any time prior toprice in excess of the then-usual current market price or upon terms and conditions more onerous to the Business than those consistent with past practices of Sellers; (u) except in the Ordinary Course of Business, not (i) make, change or revoke any material Tax election, settle or compromise any material Tax claim or Liability or enter into a settlement or compromise, or change (or make a request to any taxing authority to change) any material aspect of its method of accounting for Tax purposes that, in each case, would increase the Tax Liabilities of Buyer for any period (or portion thereof) after the Closing Date or (ii) prepare or file any of the conditions Tax Return (or any amendment thereof) other than any Tax Return that relates solely to Seller Taxes unless such Tax Return shall have been prepared in a manner consistent with past practice and Sellers shall have provided Buyers a copy thereof (together with supporting papers) at least three (3) Business Days prior to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfieddue date thereof; (ev) amend, modify, waive, terminate not merge (or otherwise alter in any material respect the provisions, terms be merged) with or conditions of into any other agreements between Person (including any other Seller), except as would not reasonably be expected to (i) impair or delay the Company and transactions contemplated by this Agreement, (ii) adversely affect Buyers’ ownership of the Business or the Assets following Closing or (iii) adversely affect the Buyer Indemnified Parties’ indemnification rights pursuant to Article VIII or the collectability thereof; (w) not enter into any agreements, programs or other arrangements with any other Person that has committed (i) any arrangement containing any limitation or restriction of any nature on the ability of the Business to purchase shares of Series A Preferred Stock and Series B Preferred Stock operate or compete, including exclusivity provisions, non-competition provisions, non-solicitation provisions or any agreements other restrictive covenant; (ii) any arrangement containing or granting most favored nations or similar pricing provisions; or (iii) except for actions in the Ordinary Course of Business, any action that would result in increased Liabilities to be entered into in connection therewiththird parties under an Assumed Contract; orand (fx) not authorize, contract, commit or otherwise agree whether in writing or otherwise to take any of the actions restricted by set forth in clause (c) or clauses (h)-(w) of this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or in the ordinary course of business5.2.

Conduct of Business Pending the Closing. The Company covenants (a) Between the Effective Date and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writingDate, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company each Seller shall, and shall cause each of its Significant Subsidiaries to, : (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice; respect to the Assets; (ii) continue in full force and effect the existing insurance policies and coverage related to the Assets; (iii) maintain the Assets in good operating condition and repair, subject only to ordinary wear and tear; (iv) use its reasonable best efforts confer with the Buyers prior to preserve implementing any operational decisions of a material nature affecting the goodwill and ongoing operations of its business; Assets; (v) maintain its all books and records in of such Seller relating to the usual, regular and ordinary manner, on a basis consistent with past practice; and Assets; (vi) comply cooperate with the Buyers and assist the Buyers in all material respects with applicable Laws. Notwithstanding identifying the foregoing Governmental Authorizations required by the Buyers to own and except as expressly contemplated by this Agreement operate the Assets from and after the Closing Date and either transferring existing Governmental Authorizations of such Seller to the Buyers, where permissible, or as set forth on Section 6.1 reasonably assisting the Buyers so that the Buyers may file the requisite documentation in order to obtain new Governmental Authorizations issued in favor of the Company Disclosure Schedulerespective Buyers; (vii) upon request from time to time, between execute and deliver all documents that may be reasonably necessary or desirable in the date opinion of the Buyers to consummate the transactions contemplated under this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayed:further consideration; (aviii) amend not take any action which would give rise to any claim against any Party for a finder’s fee, broker commission or like payment; and (ix) without limiting the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement;foregoing, consult with the Buyers regarding all significant developments, transactions and proposals relating to the Assets. (b) become liable in respect of any guarantee or incurBetween the Effective Date and the Closing Date, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit Agreement;Sellers shall cause Forbes Mexico Personnel to: (c) make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereof; (d) take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or conduct its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or business in the ordinary course of business; (ii) continue in full force and effect the existing insurance policies and coverage; (iii) make no material changes in personnel without the Buyers’ prior written consent; (iv) confer with the Buyers prior to implementing any operational decisions of a material nature; (v) maintain all books and records of Forbes Mexico Personnel in the ordinary course of business; and (vi) not modify any compensation arrangements with respect to any employees of Forbes Mexico Personnel without Buyers’ prior written consent.

Conduct of Business Pending the Closing. The Company covenants and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of Except as otherwise expressly contemplated by this Agreement or with the Closing (A) unless the Investors otherwise agree in writingprior written consent of Allscripts, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company RxCentric shall, and shall cause each of its Significant Subsidiaries to, : (i) conduct its business the businesses of RxCentric only in the ordinary course and consistent with past practice; ; (ii) use reasonable best efforts not enter into any contracts or agreements that contain prices less than RxCentric’s standard prices less RxCentric’s standard discounts, consistent with past practice, or that impose liabilities in any instance in excess of $10,000, or $25,000 in the aggregate, that are not satisfied prior to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; the Closing Date; (iii) use its commercially reasonable best efforts to (A) preserve its present business operations and organization (including, without limitation, management and the sales force) and (B) preserve its present relationship with those customers and suppliers set forth on Schedule 6.22; (iv) maintain (A) all of the material assets it owns or uses and properties of RxCentric in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of RxCentric in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (A) maintain the books, accounts and records of RxCentric in the ordinary course of business consistent with past practice; , (ivB) use its reasonable best efforts continue to preserve collect Accounts Receivable and pay accounts payable (other than disputed accounts) utilizing normal procedures and without discounting or accelerating payment of such accounts and (C) comply in all material respects with all contractual and other obligations applicable to the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and RxCentric; (vi) comply in all material respects with applicable laws, including, without limitation, Environmental Laws. Notwithstanding the foregoing ; and except Except as otherwise expressly contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without with the prior written consent of the InvestorsAllscripts, which consent RxCentric shall not be unreasonably withheld or delayednot: (avii) amend materially (A) increase the Certificate annual level of Incorporation compensation of any employee of RxCentric, (B) increase the annual level of compensation payable or bylaws to become payable by RxCentric to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other organizational documents except direct or indirect compensation to any employee, director or consultant, other than in the ordinary course consistent with past practice or in such amounts as contemplated by this Agreementare fully reserved against in the Financial Statements, (D) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of RxCentric or otherwise modify or amend or terminate any such plan or arrangement or (E) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) to which RxCentric is a party or involving a director, officer or employee of RxCentric in his or her capacity as a director, officer or employee of RxCentric; (bviii) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings trade payables, advances for employee reimbursable expenses and for indebtedness for borrowed money incurred in each case in the ordinary course of business as permitted under and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the Credit Agreementguarantor, surety, endorser or otherwise liable for any debt, obligation or liability (contingent or otherwise) of any other Person; (cix) subject to any Lien any of the properties or assets (whether tangible or intangible) of RxCentric; (x) acquire any material properties or assets or sell, assign, transfer, convey, lease or otherwise dispose of any of the material properties or assets (except for fair consideration in the ordinary course of business consistent with past practice) of RxCentric; (xi) cancel or compromise any debt or claim due to RxCentric or waive or release any material right of RxCentric except in the ordinary course of business consistent with past practice; (xii) enter into any commitment for capital expenditures in excess of $10,000 for any individual commitment and $25,000 for all commitments in the aggregate; (xiii) enter into, modify or terminate any labor or collective bargaining agreement of RxCentric or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to RxCentric; (xiv) enter into or agree to enter into any merger or consolidation with any corporation or other Person, or engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person (other than advances for reimbursable employee expenses); (xv) make any declaration, setting aside change in any method of accounting for Tax or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, financial accounting purposes (except as required by the terms thereof;GAAP), make or revoke any Tax election or settle or compromise any Tax dispute; or (dxvi) take any action that is reasonably likely agree to result in (i) do anything prohibited by this Section 7.1 or anything which would make any of the representations and warranties set forth of RxCentric in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false this Agreement untrue or inaccurate incorrect in any material respect as of, or at of any time prior to, through and including the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or in the ordinary course of businessEffective Time.

Conduct of Business Pending the Closing. The Company covenants (i) Except as set forth in Section 4.1 of the Seller Disclosure Schedule, except as contemplated by this Agreement or by any of the Ancillary Agreements, and agrees thatexcept with the written consent of the Purchaser, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or hereof to the Closing Date (A) unless or, in the Investors otherwise agree in writingcase of a Deferred Asset, to the Subsequent Closing Date on which such Deferred Asset is conveyed to the Purchaser), the Sellers shall, and shall cause INA Corporation and its subsidiaries which constitute Acquired Companies to, (B1) use Reasonable Best Efforts to preserve their relationships with and the goodwill of their agents, brokers, customers, suppliers, employees and other persons having business dealings with the Sellers and the Acquired Companies in connection with the Business and (2) use Reasonable Best Efforts to preserve the Business, and (ii) except as set forth in Section 6.1 4.1 of the Company Seller Disclosure Schedule Schedule, except as may be required in connection with the transactions contemplated by the Excluded Business Transfer Agreements, except as may be required to effect the Sellers' retention of any Deferred Assets at any Closing or (C) any Subsequent Closing in accordance with Section 1.3 hereof, except for those actions specifically set forth in Sections 2.06(i), (ii) as contemplated by this Agreement or (iii) by any of the Restated Governance AgreementAncillary Agreements, and except with the written consent of the Purchaser, during the period from the date hereof to the Closing Date (or, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval case of a majority of the directors appointed by the Investors Deferred Asset, to the Board of DirectorsSubsequent Closing Date on which such Deferred Asset is conveyed to the Purchaser), the Company Sellers shall, and shall cause each of INA Corporation and its Significant Subsidiaries subsidiaries which constitute Acquired Companies to, (i) conduct its business only the Business in the ordinary course and consistent with past practice; practice (ii) use reasonable best efforts to preserve including in respect of underwriting standards and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all reserving guidelines). Without limiting the generality of the foregoing, except as set forth in Section 4.1 of the Seller Disclosure Schedule, except as may be required in connection with the transactions contemplated by the Excluded Business Transfer Agreements, except as may be required to effect the Sellers' retention of any Deferred Assets at any Closing or any Subsequent Closing in accordance with Section 1.3 hereof, except as contemplated by this Agreement or by any of the Ancillary Agreements, and except with the written consent of the Purchaser, during the period from the date hereof to the Closing Date (or, in the case of a Deferred Asset, to the Subsequent Closing Date on which such Deferred Asset is conveyed to the Purchaser), the Sellers shall not, and shall not permit INA Corporation or its subsidiaries which constitute Acquired Companies to, with respect to the Business: (1) enter into any contract or agreement (including insurance agreements) relating to the Business or that would constitute part of the Acquired Assets, in each case, other than: (1) such contracts or agreements that are entered into in the ordinary course of business consistent with past practice (including investments made in the ordinary course of business consistent with the investment policies of INA Corporation or its subsidiaries which constitute Acquired Companies, as the case may be); and (2) any such contract or agreement not entered into in the ordinary course of business consistent with past practice and pursuant to which the Business receives or is reasonably expected to receive payments, or makes or is reasonably expected to make payments, of less than one million dollars ($1,000,000) per calendar year; (2) acquire, lease, encumber, transfer or dispose of any asset relating to the Business or that presently does or would at the Closing constitute part of the Acquired Assets, in each case, other than: (1) acquisitions, leases, encumbrances, transfers or dispositions entered into in the ordinary course of business consistent with past practice (including acquisitions or dispositions of investments in the ordinary course of business consistent with the investment policies of INA Corporation or its subsidiaries which constitute Acquired Companies, as the case may be); and (2) any acquisition, lease, encumbrance, transfer or disposition not entered into in the ordinary course of business consistent with past practice and pursuant to which the Business receives or is reasonably expected to receive payments, or makes or is reasonably expected to make payments, of less than one million dollars ($1,000,000) per calendar year; (3) pay, discharge or satisfy any material assets it owns claims, liabilities or uses obligations (absolute, accrued, contingent or otherwise) associated with the Business, other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice; (iv) use its reasonable best efforts to preserve the goodwill and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except as expressly contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayed: (a) amend the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement; (b4) become liable in respect incur any indebtedness for borrowed money or guarantee any indebtedness of another or make any guarantee loans or incuradvances of borrowed money or capital contributions to, assume or otherwise become liable in respect of equity investments in, any debtother person, except for guarantees or borrowings other than: (1) indebtedness, guarantees, loans, advances, contributions and investments in the ordinary course of business consistent with the investment policies of INA Corporation or its subsidiaries which constitute Acquired Companies, as permitted the case may be; and (2) indebtedness, guarantees, loans, advances, contributions and investments in the ordinary course of business under the Credit Agreementlines of credit with CIGNA or its affiliates; (c5) issue or sell or agree to issue or sell any additional equity interests of, or grant, confer or award any options, warrants or rights of any kind to acquire any equity interests, including without limitation securities convertible or exchangeable for equity interests, of INA Corporation or its subsidiaries which constitute Acquired Companies; (6) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or assets comprising a business or make any material investment, either by purchase of stock or other securities, or contribution to capital, in any case, in any material amount of property or assets in or of any other person (other than acquisitions, investments or contributions in the ordinary course of business consistent with the investment policies of INA Corporation or its subsidiaries which constitute Acquired Companies, as the case may be); (7) (1) enter into any employment or severance agreement, other than for new employees in the ordinary course of business, (2) increase the benefits payable in the aggregate under severance or termination pay plans or policies in effect on the date hereof, other than amendments to existing policies or agreements of CIGNA which apply to all employees who are subject to the plans or policies (and not just Affected Employees) and other than as required by Law, (3) adopt any new or amend any existing bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan or policy for the benefit of any director, officer or employee, other than (A) for new employees in the ordinary course of business, (B) amendments to existing plans or policies of CIGNA which apply to all employees who participate in the plan or policy (and not just Affected Employees), (C) as required by Law and (D) amendments to bonus and profit sharing plans or policies which are applicable to all or a portion of the Business and which do not in the aggregate increase amounts otherwise payable under such plans or policies, or (4) increase the compensation or benefits of any director, officer or employee, other than in the ordinary course of business and other than as required by Law; provided, however, that INA Corporation and -------- ------- its subsidiaries which constitute Acquired Companies may enter into, adopt or amend any of the foregoing prohibited agreements or take any of the foregoing prohibited actions which, in the good faith judgement of the Sellers after consultation with the Purchaser, are necessary or desirable to conduct or maintain the Business in the ordinary course; (8) change any of the material accounting principles, practices, methods or policies (including but not limited to any reserving methods, practices or policies) employed with respect to the Business, except as may be required as a result of a change in Law, GAAP or SAP (with the Sellers providing the Purchaser with prompt, prior written notice of any such change); (9) pledge or otherwise encumber shares of capital stock of INA Corporation or its subsidiaries which constitute Acquired Companies, or mortgage or pledge any of their assets, tangible or intangible, or create any encumbrance, other than Permitted Liens; (10) adopt a plan of complete or partial liquidation or resolutions providing for the complete or partial liquidation, dissolution, amalgamation, consolidation, restructuring, recapitalization or other reorganization of INA Corporation or its subsidiaries which constitute Acquired Companies; (11) make any declarationinvestments other than in accordance with the investment policies of the Acquired Companies as of the date of this Agreement, setting aside or make any material amendments to such investment policies; (12) other than settlements under insurance policies in the ordinary course of business, make any prepayment of any material liabilities; (13) make any amendment restricting the Business, termination (other than in accordance with its terms), waiver or disposal of any Seller Permit which is material to the Business; (14) (A) from the date hereof through May 31, 1999, pay any dividend or authorize the payment of any dividends, (B) from June 1, 1999 through June 30, 1999, pay any dividend or authorize the payment of any dividends in excess of eleven million seven hundred thousand dollars ($11,700,000), and (C) from and after July 1, 1999, pay any dividend or authorize the payment of any dividends in excess of fifteen million dollars ($15,000,000) per fiscal month, other distribution with respect tothan, in the case of clauses (A), (B) and (C), the payment of any dividends or the authorization of the payment of any repurchasedividends which originate from any person which constitutes part of the Excluded Business; (15) enter into any new agreement or arrangement between any of the Acquired Companies, redemptionon the one hand, early repayment and CIGNA or other acquisition of, any of its capital stocksubsidiaries (other than the Acquired Companies), securities directly or indirectly convertible into capital stock, or debt instruments, except as required by on the terms thereofother; (d16) take enter into any action that is reasonably likely to agreement with a third party providing for the acceleration, payment, performance, consent or other consequence as a result of a change in (i) any control of the representations INA Corporation and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewithits subsidiaries which constitute Acquired Companies; or (f17) agree in writing or otherwise to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing described above in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to clauses (i) pay fees through (xvi) of this Section 4.1(a). (2) Notwithstanding anything to the lenders under contrary contained in Sections 4.1(a)(i), 4.1(a)(ii), 4.1(a)(iii), 4.1(a)(iv) and 4.1(a)(xvii) hereof (in the Credit Agreementcase of Section 4.1(a)(xvii) hereof, (iionly in respect of Sections 4.1(a)(i), 4.1(a)(ii), 4.1(a)(iii) enter into waivers with respect and 4.1(a)(iv) hereof), the Sellers and the Acquired Companies shall be entitled to take any and all actions provided for in the Business Plans without the consent of the Purchaser. Notwithstanding anything to the Credit Agreementcontrary contained in Section 4.1(a) hereof, if the transactions to be implemented pursuant to Article I of the Excluded Business Transfer Agreement would result in an adverse effect on all or a portion of the Business, then the Sellers must obtain the written consent of the Purchaser (iiinot to be unreasonably withheld) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take before implementing any other action with respect to the Credit Agreement in accordance with past practice or in the ordinary course of businesssuch transactions.

Conduct of Business Pending the Closing. The Company covenants and agrees that(a) Except as otherwise contemplated by this Agreement or set forth in Schedule 6.02, during the period from Interim Period, Seller will cause the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries Companies to, : (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets it owns or uses operate in the ordinary course of business consistent with past practicepractices in all material respects; (ii) use their commercially reasonable efforts to (A) preserve its present business operations, organization (including, without limitation, management) and goodwill of the Companies and (B) preserve its present relationship with Persons having business dealings with the Companies (including, without limitation, customers and suppliers); (iii) determine the cost of renewing the Pollution Legal Liability Policy as it applies to Erie for a term of one year and, at Buyer's direction, and at the Companies' expense, so renew such policy, with Seller named as an additional insured; and (iv) use its reasonable best efforts file, or ensure that Carr Street is in a position to preserve the goodwill and ongoing operations of its business; file, Carr Street's market-basex xxte triennial report with FERC by Oxxxxer 1, 2004. (vb) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except Except as expressly otherwise contemplated by this Agreement or as set forth on Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investorsin Schedule 6.02 or as consented to by Buyer, which consent shall not be unreasonably withheld withheld, conditioned or delayed, during the Interim Period, Seller will not, and will cause the Companies not to: (ai) amend other than the Certificate Company Liens referenced in Section 6.08, permit or allow any Lien securing indebtedness for borrowed money against any of Incorporation or bylaws or other organizational documents except as contemplated by this Agreementthe Purchased Assets; (bii) become liable grant any waiver of any material term under, or give any material consent with respect to, any Material Contract; (iii) except in respect of Capital Expenditures required by Section 6.02(a), enter into, terminate or amend any guarantee Contract involving total consideration throughout its term in excess of $1,000,000 (other than Contracts entered into in the ordinary course of business consistent with past practices which will be fully performed prior to the Closing); (iv) incur Capital Expenditures in excess of the applicable amount shown on Schedule 6.02(b)(iv); (v) [intentionally omitted]; (vi) other than trade payables incurred in the ordinary course of business consistent with past practices or accounts payable pursuant to the Material Contracts or the Terminated Contracts, incur, create, assume or otherwise become liable in respect for indebtedness or issue any debt securities or assume or guarantee the obligations of any debtother Person; (vii) fail to maintain its partnership or corporate existence or consolidate with any other Person or acquire all or substantially all of the assets of any other Person; (viii) issue or sell any partnership interests or securities of any Company, or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of any Company; (ix) liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations; (x) purchase any securities of any Person, except for guarantees short-term investments or borrowings cash equivalents made in the ordinary course of business as permitted under the Credit Agreementconsistent with past practices; (cxi) cancel any debts or waive any claims or rights having a value in excess of $500,000; (xii) make or revoke any declarationmaterial election with respect to Taxes of or relating to any Company or the Purchased Assets or settle or compromise any material claim, setting aside action, suit, litigation, proceeding, arbitration, investigation, audit or payment controversy with respect to Taxes of or relating to any Company or the Purchased Assets that could reasonably be expected to have a material effect on the Companies or the Purchased Assets after the Closing; (xiii) amend or modify its Charter Documents; (xiv) except for transfers of cash with respect to which corresponding Intercompany Receivables or Intercompany Payables have been created or correspondingly adjusted or transfers of cash in exchange for goods and services pursuant to a Material Contract listed on Schedule 4.08(x) with Seller or a Non-Company Affiliate, make any transfers of cash to Seller or a Non-Company Affiliate; provided, further, that the Companies shall not directly pay any principal of or interest or fees on indebtedness owed by Seller or any Non-Company Affiliate without the creation of an equivalent Intercompany Receivable or a corresponding adjustment of a corresponding Intercompany Payable; (xv) record accounting entries to Intercompany Payables or Intercompany Receivables with respect to which the offsetting entry is recorded to shareholder equity or partner's capital; (xvi) subject to Section 2.02(c), declare, set aside, make or pay any dividend or other distribution with in respect toof the capital stock or partnership interests of any Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or any repurchase, redemption, early repayment or other acquisition ofownership interests in, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereofCompany; (dxvii) take effect any action that is reasonably likely to result recapitalization, reclassification, stock split or like change in the capitalization of any Company; (xviii) (i) hire or promote any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreementemployee, (ii) enter into waivers except with respect to increases in compensation that, but for the Credit Agreementtiming of the grant thereof, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or are in the ordinary course of business, grant any increase in the compensation of any employee, (iii) establish any new compensation or benefit plan or arrangement, (iv) amend or modify any Company Plan or Seller Plan insofar as any such amendment or modification to a Seller Plan relates solely to employees of the Companies, or (v) enter into any employment, consulting, termination, retention, change of control or severance agreement; provided, that nothing above shall restrict normal periodic increases, promotions, hiring or changes effected in the ordinary course of business consistent with past practices, changes required pursuant to applicable Laws, or changes required pursuant to Contracts in effect as of the Execution Date (including the Collective Bargaining Contract); (xix) except in the ordinary course of business, acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of the Companies; (xx) enter into or agree to enter into any merger or consolidation with, any corporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (xxi) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any of its Subsidiaries; (xxii) make any material change in its accounting or Tax reporting principles, methods or policies, except as otherwise required by GAAP; (xxiii) enter into any Contract that restrains, restricts, limits or impedes the ability of any Company to compete with or conduct any business or line of business in any geographic area; (xxiv) except in the ordinary course of business, terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property license or (B) Company Permit; (xxv) enter into a Contract with any Affiliate; (xxvi) permit any Company to enter into any material Contract or to enter into, modify or renew any material Contract with respect to the sale of energy which could bind the Companies after September 30, 2003; or (xxvii) agree or commit to do any of the foregoing. Notwithstanding the foregoing, Seller may permit the Companies to take commercially reasonable actions with respect to emergency situations and to comply with applicable Law so long as Seller shall promptly inform Buyer of any such emergency actions taken outside the ordinary course of business consistent with past practices.

Conduct of Business Pending the Closing. The Company covenants and agrees that, during the period from From the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Closing, except (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or Schedule, (B) as required by Law, (C) except for those actions specifically set forth in Sections 2.06(i)as otherwise contemplated by this Agreement, (iiD) in connection with, or as a result of, the consummation of any of the Spin Transactions (including as a result of (x) the Hotel Assets ceasing to be managed or operated by the employees of Parent that currently manage and operate such Hotel Assets or (y) Parent ceasing (or taking steps to cease) its operations in the hotel or lodging industry generally) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be any action taken by Parent in furtherance thereof or (E) with the Company prior written consent of any Buyer (which consent shall not be unreasonably withheld, delayed or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors conditioned): (a) Prior to the Board of DirectorsClosing, the Company Parent shall, and shall cause each of its Significant Subsidiaries Selling Subsidiary, to, : (i) conduct its business only use, own or operate the Real Property, the Hotels and the other Hotel Assets in substantially the ordinary course same manner as currently conducted, including by (A) entering into any Management Agreements, Franchise Agreements or other Material Contracts (or, in each case, modifications, amendments, waivers and supplements thereto) to the extent consistent with the past practice; (ii) use reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its reasonable best efforts to maintain all operation of the material assets it owns applicable Real Property or uses Hotel and with the consent of any Buyer (provided that such Buyer’s consent shall not be required for any such modifications, amendments, waivers or supplements as may be affected automatically in accordance with such Material Contracts or are otherwise expressly contemplated by this Agreement), (B) causing the Managers and Franchisors to continue to operate the Hotels in the ordinary course of business consistent with past practicepractices, including by maintaining levels of Supplies, Consumables and Retail Inventories consistent with seasonally-adjusted past practices and (C) continuing to maintain the insurance currently carried by Parent or the applicable Selling Subsidiary with respect to the Hotels; and (ivii) use its reasonable best efforts Reasonable Efforts to preserve the goodwill each Selling Subsidiary’s (A) present operations and ongoing operations of its business; (v) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; organization and (viB) comply in all material respects present relationships with applicable Laws. Notwithstanding Managers, Franchisors, Employees, landlords under the foregoing Ground Leases, Lenders, Occupants and except as expressly contemplated by this Agreement or as set forth on Section 6.1 of other Persons with whom the Company Disclosure Schedule, between the date of this Agreement and Selling Subsidiaries have similar relationships. (b) Prior to the Closing, the Company Parent shall not, and shall cause each of its Significant Subsidiaries Selling Subsidiary not to, do take any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayedactions set forth in clauses (i) – (v) below: (ai) amend other than in the Certificate ordinary course of Incorporation or bylaws business, subject any of the Real Property, Hotels or other organizational documents except as contemplated by this AgreementHotel Assets to any Lien other than Permitted Liens; (bii) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings other than in the ordinary course of business as permitted under or pursuant to the Credit Agreementterms of a Material Contract, sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Hotel Assets (other than the Real Property, which is addressed in clause (iii) below); (ciii) make any declarationsell, setting aside or payment of any dividend or other distribution with respect toassign, or any repurchase, redemption, early repayment or other acquisition of, transfer any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereofReal Property; (d) take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this Section 6.1. Notwithstanding the foregoing, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(d)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or than in the ordinary course of business, enter into, amend, terminate or renew any Material Contract (including all Management Agreements and Franchise Agreements), other than (A) any automatic amendments, terminations or renewals pursuant to the terms of any Material Contract or (B) terminations of Existing Loans (including by prepayment thereof), TRS Leases, Franchise Agreements, PILOT Agreements (to the extent related to the Real Property on which the Hilton Garden Inn Westbury is located) or Terminating Management Agreements; (v) settle any material Legal Proceeding involving the Real Property or any Hotel or relating to the transactions contemplated by this Agreement or the Transaction Documents, other than settlements involving the payment of cash (and no ongoing restrictions on the Real Property or Hotels to be acquired directly or indirectly by either Buyer) for which Parent bears sole financial responsibility; (vi) except for restorations or alterations required in the case of emergencies or material casualty or condemnation, make any material alterations to the Hotels without consent or approval of a Buyer; or (vii) agree to do anything prohibited by this Section 6.1(b). (c) Notwithstanding anything in Section 6.1(a) or Section 6.1(b), in no event shall Parent be responsible for any action taken by any Manager or Franchisor, which such Manager or Franchisor is permitted to take pursuant to the terms of the applicable Management Agreement or Franchise Agreement without the consent or approval of the applicable Selling Subsidiary, and Parent’s failure to prevent such Manager or Franchisor from taking such action shall not, in any event, be deemed a breach of this Section 6.1.

Conduct of Business Pending the Closing. The Company covenants and agrees that, during the period from From the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Closing, except (A) unless the Investors otherwise agree in writing, (B) except as set forth in Section 6.1 of the Company Disclosure Schedule or Schedule, (B) as required by Law, (C) except for those actions specifically set forth in Sections 2.06(i)the ordinary course of business, (iiD) as otherwise contemplated by this Agreement or the Transaction Documents or (iiiE) with the prior written consent of the Restated Governance AgreementBuyer (which consent shall not be unreasonably withheld, in the form attached hereto as Exhibit C, which are permitted to be taken by the Company delayed or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company conditioned): (a) Seller shall, and shall cause the Company and each of its Significant Subsidiaries Company Subsidiary to, : (i) conduct its business only use, own or operate the Company, Company Subsidiaries, Real Property and Communities in the ordinary course of business and in substantially the same manner as currently conducted, including by (subject to Section 6.1(b)) (A) entering into any Ground Lease, Office Lease, Retail Lease, University Agreement or similar arrangements or modifications, amendments, waivers and supplements to any Material Contracts to the extent consistent with the past practice; operation of the applicable Real Property or Communities, (B) continuing to maintain the insurance currently carried by Seller or the Company or applicable Company Subsidiary, including with respect to the Communities, (C) maintaining and repairing the Communities in accordance with the Company’s past practices and subject to ordinary wear and tear, and (D) timely perform in all material respects all obligations under the existing mortgage financing encumbering the Communities; (ii) use reasonable best efforts to preserve continue and maintain its assets complete any development and properties and its relationships construction activities related to any Development Real Property substantially in accordance with its customersthe Development Plans, suppliersincluding without limitation, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; that portion of the Development Plans relating to the schedule to completion; (iii) allow Buyer to reasonably monitor construction and development architecture and operations at the Development Properties, including without limitation by having the right to attend any and all regularly scheduled meetings with respect to project architects and general contractors and receiving copies of any construction advance requests; and (iv) use its reasonable best efforts to maintain all of the material assets it owns or uses in the ordinary course of business consistent with past practice; (ivA) use its reasonable best efforts to preserve the goodwill Company’s and ongoing operations of its business; (v) maintain its books each Company Subsidiary’s present operations, relationships and records in the usualorganization and, regular and ordinary manner, on a basis consistent with past practice; and (viB) comply in all material respects with applicable Laws. Notwithstanding the foregoing and except not allow a default to occur under any Material Contract as expressly contemplated a result of any actions taken or omitted to be taken by this Agreement or as set forth on Section 6.1 of the Company Disclosure Schedule, between the date of this Agreement and the Closing, the Company Subsidiaries. (b) Seller shall not, and shall cause the Company and each of its Significant Subsidiaries Company Subsidiary not to, do any of the following without the prior written consent of the Investors, which consent shall not be unreasonably withheld or delayed: (a) amend the Certificate of Incorporation or bylaws or other organizational documents except as contemplated by this Agreement; (b) become liable in respect of any guarantee or incur, assume or otherwise become liable in respect of any debt, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit Agreement; (c) make any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption, early repayment or other acquisition of, any of its capital stock, securities directly or indirectly convertible into capital stock, or debt instruments, except as required by the terms thereof; (d) take any action that is reasonably likely to result in (i) any of the representations and warranties set forth in Article III (as modified by any section of the Company Disclosure Schedule relating thereto) becoming false or inaccurate in any material respect as of, or at any time prior to, the Closing Date or (ii) any of the conditions to the obligations of the Investors set forth in Section 5.2(a) or (b) not being satisfied; (e) amend, modify, waive, terminate or otherwise alter in any material respect the provisions, terms or conditions of any other agreements between the Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree to take any of the actions restricted by this set forth in Section 6.1. Notwithstanding the foregoing6.1(b)(i) through Section 6.1(b)(xv) below, nothing in this Section 6.1 shall in any way be deemed to restrict or prohibit the Company's or its Subsidiaries' ability to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers each case with respect to the Credit AgreementCompany and the Company Subsidiaries: (i) subject to Section 6.1(b)(vii), transfer, issue, sell or dispose of any Share or Subsidiary Equity Interest or grant options, warrants, calls or other rights to purchase or otherwise acquire any Share or Subsidiary Equity Interest; (ii) effect any liquidation, dissolution, recapitalization, reclassification or like change in the capitalization or permit any merger or consolidation with any Person; (iii) amend Organizational Documents other than in connection with the Credit Agreement (consistent with Section 5.1(d)), Conversions or as reasonably required in order to secure any Lender Consent provided that no required amendment for Lender Consent shall change or modify the entity form or the management or governance structure of the respective Company Subsidiary; (iv) take other than in connection with the Development Plans, subject any of the Real Property or Communities to any Lien other action than Permitted Liens; (v) other than pursuant to the terms of a Material Contract, acquire any material properties or assets or sell, assign, license, transfer, convey, lease (except with respect to the Credit Agreement in accordance with past practice or a Student Lease made in the ordinary course of business) or otherwise dispose of any of the Real Property or any Communities; (vi) enter into, amend, terminate or renew any Material Contract, other than (A) any automatic amendments, terminations or renewals pursuant to the terms of any Material Contract or (B) terminations of Existing Loans (including by prepayment thereof); (vii) materially increase any compensation to, or enter into or amend any employment, severance, termination or similar agreement with, any of its employees, except for (a) year-end bonuses in respect of 2015, (b) long-term incentive grants in 2016 and (c) normal compensation increases as required under any agreement in effect as of the date of this Agreement; (viii) settle any material Legal Proceeding (other than the Acadiana Claim) involving the Real Property or any Community or relating to the transactions contemplated by this Agreement or the Transaction Documents, other than settlements involving the payment of cash (and no ongoing restrictions on the Real Property or Communities to be acquired directly or indirectly by Buyer) for which Seller bears sole financial responsibility; (ix) make any material modifications to the Development Plans; (x) make or change any material Tax election, adopt or change any material accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or Company Subsidiary, except in each case to the extent necessary to maintain Seller’s qualification as a REIT or, prior to the Conversions, the Company’s and UHCP’s qualification as a QRS of Seller; (xi) terminate the employment of any employee under circumstances constituting an “employment loss” as defined in the WARN Act; (xii) remove or allow to be removed any material personal property or fixtures from the Real Property except for purposes of replacement thereof in the ordinary course of business, in which case such replacements shall be promptly installed prior to the Closing and shall be comparable in all material respects in quantity and quality to the item(s) being replaced; (xiii) offer any new material concessions or promotions not in place as of the date hereof, with respect to any of the Retail Leases or proposed retail leases; (xiv) except as set forth in Section 6.1(b)(xiv) of the Disclosure Schedule, implement any new material policies or concessions not in place as of the date hereof, with respect to any of the Student Leases; and (xv) agree to do anything prohibited by this Section 6.1(b). (c) In the event that as of the Closing Date the Austin Development has not achieved Substantial Completion, (x) Seller shall deliver into escrow with Xxxxx Fargo Bank, National Association (the “Austin Escrow Agent”), pursuant to an escrow agreement substantially in the form attached hereto as Exhibit E, an amount equal to $8,000,000 (the “Austin Escrow”), and (y) Buyer and Seller shall cooperate in good faith to achieve Substantial Completion of the Austin Development on or before the Austin Completion Date. For a period from Closing until the date of Completion (the “Austin Escrow Period”), Buyer shall have the right to be reimbursed from the Austin Escrow for the amount of any Austin Losses, provided that, Buyer shall not have any right to such reimbursement (1) if Buyer makes any changes to the Austin Project Team (other than termination of a member due to willful misconduct, fraud or any criminal conduct) or (2) to the extent that any Austin Losses are caused by change-orders or changes to the scope of the Austin Development made by Buyer that result in additional costs not included in the Austin Budget. Upon Seller’s reasonable written request, Buyer shall assign to Seller any claims that Buyer may have against the general contractor under the Austin Construction Contract for which Buyer has been reimbursed from the Austin Escrow and Buyer shall, and shall cause the Company and any applicable Company Subsidiaries to use reasonable best efforts to cooperate (including, by making available to Seller books, records and personnel) with Seller in order for Seller to pursue and recover such claims. At the end of the Austin Escrow Period, the Austin Escrow Agent shall promptly deliver to Seller any remaining amounts in the Austin Escrow. In the event the Austin Losses exceed the amounts in the Austin Escrow, Seller hereby acknowledges and agrees that Buyer shall have the right to seek a claim under Article VIII for such amounts in excess of the Austin Escrow. (d) The Parties hereby acknowledge and agree that the current completion guarantor under the ground lease for the Austin Property is Inland American Real Estate Trust, Inc. pursuant to the Completion Guaranty dated as of September 18, 2014 (the “Austin Completion Guaranty”). On and after the date hereof through Closing, Buyer shall use commercially reasonable efforts to have ground lessor accept UHC Group, Inc. as a replacement guarantor under the Austin Completion Guaranty. If, at Closing, ground lessor has not agreed to a replacement of the existing guarantor under the Austin Completion Guaranty, UHC Group, Inc. shall indemnify Seller, pursuant to a separate indemnity agreement in form and substance reasonably acceptable to Seller and Buyer, for any liabilities under the completion guaranty on and after the Closing Date, excepting therefrom any liability of Seller under Article VIII of the Agreement. (e) In the event that, as a result of the early terminations, concessions, incentives, reductions, rebates, etc. described in Section 6.1(b)(xiv) of the Disclosure Schedule (the “Concession”), there are Losses of contracted rent with respect to Student Leases for the 2015-2016 academic year, Buyer shall be entitled to receive a credit against the Initial Purchase Price as provided in Section 2.2(m) in an amount equal to the Losses for the period from the Closing Date through the original lease termination date (on a pro rata basis) as a result of the Concession (such amount, the “Concession Losses”).

Conduct of Business Pending the Closing. The (a) Except (i) as expressly permitted or required by this Agreement, (ii) with the prior written consent of Buyer (which shall not be unreasonably withheld, conditioned or delayed), (iii) as set forth on Section 5.1(a) of the Company covenants and agrees thatDisclosure Schedule, (iv) as expressly contemplated or required by the Pre-Closing Actions or (v) as required by Law, during the period from the date of this Agreement and continuing Date until the earlier of the Closing and the termination of this Agreement or pursuant to Article VII (the “Pre-Closing Period”), Seller shall cause each Group Company to (A) unless conduct its business in the Investors otherwise agree in writingOrdinary Course of Business, (B) except as set forth in Section 6.1 use commercially reasonable efforts to maintain and preserve intact its business organization and the goodwill of the Company Disclosure Schedule or business and its material business relationships (C) except for those actions specifically set forth in Sections 2.06(i), (ii) or (iii) of the Restated Governance Agreement, in the form attached hereto as Exhibit C, which are permitted to be taken including by the Company or its Significant Subsidiaries without the approval of a majority of the directors appointed by the Investors to the Board of Directors, the Company shall, and shall cause each of its Significant Subsidiaries to, (i) conduct its business only in the ordinary course and consistent with past practice; (ii) use using commercially reasonable best efforts to preserve and maintain its assets and properties technology and its preserving relationships with its customers, suppliers, advertiserslenders, distributorsand Authorities) and retain the services of its executive officers, agentscontractors and employees, officers (C) pay or perform all of its obligations when due in the Ordinary Course of Business (including accounts payable), (D) maintain its cash management practices and employees its policies, practices and procedures with respect to collection of trade accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other persons expenses, deferral of revenue, and acceptance of customer deposits in accordance with past custom and practice; provided that the Company Group will use commercially reasonable efforts to collect accounts receivable from active and inactive customers in the Ordinary Course of Business, (E) perform in all material respects all of its obligations under all Contracts to which it has significant business relationships; (iii) use its reasonable best efforts to maintain all of the material assets is a party, by which it owns or uses in the ordinary course of business consistent with past practice; (iv) use its reasonable best efforts to preserve the goodwill and ongoing operations any of its properties or assets is bound or affected or pursuant to which it is an obligor or beneficiary, and comply in all material respects with all Laws, Orders and Legal Proceedings by any Authority applicable to it or its business; , properties or assets, (vF) continue in full force and effect the Insurance Policies, (G) maintain its books and records in the usual, regular and ordinary manner, on a basis consistent with past practice; and (vi) comply practice in all material respects respects, and (H) upon reasonable advance written notice, confer with applicable Laws. Notwithstanding the foregoing Buyer concerning operational matters of a material nature and otherwise report periodically to the Buyer concerning the status of its business, operations and finances. (b) Without limiting the generality of the foregoing, except (i) as expressly contemplated permitted or required by this Agreement Agreement, (ii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), (iii) as set forth on Section 6.1 5.1(b) of the Company Disclosure Schedule, between (iv) as expressly contemplated or required by the date of this Agreement Pre-Closing Actions or (v) as required by Law, during the Pre-Closing Period, Parent and the Closing, the Company shall not, and shall cause each of its Significant Subsidiaries not to, do any of the following without the prior written consent of the Investors, which consent Seller shall not be unreasonably withheld or delayedpermit any Group Company to: (ai) amend issue, sell, grant, transfer, dispose of (or permit disposition of), pledge or otherwise encumber any Company Shares or the Certificate Equity Interests of Incorporation any other Group Company, or bylaws declare, set aside or pay any dividends or other organizational documents except as contemplated by this Agreementdistributions (whether in cash, stock or property or any combination thereof) in respect of such Company Shares or Equity Interests; (bii) become liable in respect of any guarantee or incur(A) redeem, assume purchase, repurchase or otherwise become liable in respect acquire any of its outstanding Equity Interests or (B) form any debt, except for guarantees or borrowings in the ordinary course of business as permitted under the Credit AgreementSubsidiary; (ciii) make (A) split, combine, subdivide or reclassify any declarationof its Equity Interests, setting aside or payment otherwise effect any recapitalization or other change in its capitalization; or (B) amend any terms of any dividend capital stock or other distribution with respect toequity or voting securities of any Group Company (whether by merger, consolidation or otherwise); (iv) incur or assume any indebtedness for borrowed money or guarantee any indebtedness, except in the Ordinary Course of Business, or issue or sell any repurchaseDebt (including any debt securities or options, redemptionwarrants, early repayment calls or other acquisition ofrights to acquire any debt securities of any Group Company); (v) sell, transfer, assign, convey, lease, pledge, grant any option or other right in, license (other than non-exclusive licenses to Intellectual Property in the Ordinary Course of Business), allow to lapse or expire, mortgage, encumber or otherwise abandon, dispose of or subject to any Lien (including pursuant to a sale-leaseback transaction or an asset securitization transaction), other than Permitted Liens, any of its securities, properties (including any Leased Real Property), assets, rights or businesses to any Person, except (A) in the Ordinary Course of Business, (B) pursuant to Contracts in effect on the Agreement Date or (C) for dispositions of obsolete assets that have been fully depreciated or assets having a de minimis value in the Ordinary Course of Business; (vi) make any capital stockexpenditure or incur any obligations or liabilities in respect thereof in excess of $100,000 individually, securities or $250,000 in the aggregate; (vii) directly or indirectly convertible into capital stockacquire (by merging or consolidating with, or debt instrumentsby purchasing equity interests in or assets of, or by any other manner) any Person or division, business or equity interest in any Person or, except in the Ordinary Course of Business, any assets that are not material to the Business individually or in the aggregate; (viii) make any loan, capital contribution (other than to Group Companies in the Ordinary Course of Business) or advance to or investment in any Person (other than advances to any Company Personnel in the Ordinary Course of Business); (ix) terminate (other than automatic termination in accordance with the terms thereof), cancel, modify or amend any rights, or exercise, waive, release or assign any material rights, claims or benefits under, any Material Contract (other than a Seller Plan or a Group Company Plan), or enter into any Contract that constitutes or would, upon entry by a Group Company thereto, constitute a Material Contract (other than a Seller Plan or a Group Company Plan) (including a Lease and any extension or renewal thereof on substantially the same terms) had it been entered into prior to the Agreement Date; (x) except (x) as required by applicable Laws or (y) as required by the terms thereof; (d) take of any action that is reasonably likely to result in (i) any of the representations and warranties Plan set forth in Article III (as modified by any section on Section 3.14(a) of the Company Disclosure Schedule relating theretoand as in effect as of the Agreement Date, (A) becoming false hire or inaccurate engage, or promise to hire or engage, any employee or other service provider or terminate (other than for “cause” (as determined consistent with past practice and Applicable Laws)), promote or change the title of any Company Personnel, (B) increase the compensation (whether cash- or equity-based) or benefits payable or to become payable by any Group Company to any current or former Company Personnel (other than if such former Company Personnel is then employed by Parent or any Affiliate thereof (other than a Group Company)), (C) grant any bonus, benefit or other direct or indirect compensation to any current or former Company Personnel, (D) establish, adopt, enter into, amend or terminate any Plan (or any plan, agreement, program, policy, commitment or other arrangement that would be a Group Company Plan if it were in existence on the Agreement Date) or grant, amend or terminate any awards thereunder, (E) increase the coverage under, or the compensation or benefits payable or available under, any existing severance, termination, change in control or retention pay policy or Group Company Plan, (F) take any action to accelerate the vesting or payment of any compensation or benefits of any current or former Company Personnel, (G) grant any new awards under any bonus, incentive, or performance plan, (H) take any action to fund or in any material respect as ofother way secure the payment of compensation or benefits under any Group Company Plan, (I) make any loan or cash advance to any current or former Company Personnel, (J) transfer the employment of (1) any employee of Seller or its Affiliates (other than the Group Companies) into a Group Company or (2) any employee of a Group Company into Seller or its Affiliates (other than the Group Companies), (K) enter (or commit to enter) into, amend, terminate or extend any collective bargaining agreement or other agreement with a labor union, works council or similar employee or labor organization (or enter into negotiations to do any of the foregoing), (L) implement or announce any employee layoffs, furloughs, reductions in force, reductions in compensation, hour or benefits, work schedule changes or similar actions that could implicate the WARN or any similar Law, or at (M) waive or release any time prior noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant obligation of any Company Service Provider; (xi) make, change or revoke any material election concerning Taxes, change any material accounting method in respect of Taxes, file any amended income or other material Tax Return, fail to pay a material amount of Taxes that would otherwise be delinquent (including estimated Tax payments), incur any material liability for Taxes outside the Ordinary Course of Business, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, enter into any closing agreement with respect to Taxes, settle any Tax claim or assessment, surrender any right to claim a material Tax refund, enter into any Tax sharing, closing, or similar agreement in respect of any Taxes (other than any agreement, arrangement or other Contract not principally related to Taxes), or obtain any Tax ruling; (xii) make any changes in accounting methods, principles or practices, except insofar as may be required by a change in GAAP, IFRS or Applicable Law; (xiii) amend the Company Organizational Documents (whether by merger, consolidation or otherwise); (xiv) take any action for the winding up, liquidation, dissolution or reorganization of any Group Company or for the appointment of a receiver, administrator or administrative receiver, trustee or similar officer of any Group Company’s assets or revenues (including adopting a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization other than the Ancillary Documents); (xv) commence, settle, or offer or propose to settle any material Legal Action involving or against any Group Company or any officer or director thereof or settle any material Legal Action which involves any non-monetary relief; (xvi) (A) cancel, compromise, waive or release any material right, debt or claim of the Company Group; or (B) delay or postpone the payment of payables or accelerate the payment of receivables outside the Ordinary Course of Business; (xvii) terminate, cancel, modify or amend, or exercise, waive, release or assign any rights, claims or benefits under, the Employment Agreement; (xviii) amend any Related Party Contract; (xix) agree, resolve or commit to, in writing or otherwise, to take any of the foregoing actions. (c) Subject to Section 5.1(b), during the Pre-Closing Date Period Seller will provide notice to, and consult in good faith with, Buyer before causing or permitting any Group Company to: (i) acquire or license any assets that are material to the Company Group individually or in the aggregate, except purchases or licensures, as applicable, of inventory, raw materials and software in the Ordinary Course of Business; (ii) transfer, assign, dispose or grant any license or sublicense of any rights under or with respect to any material Company-Owned IP in the conditions Ordinary Course of Business (it being understood that any such action outside the Ordinary Course of Business or inconsistent with past practice will be subject to Section 5.1(b)), including entering into, amending, renewing, terminating or modifying development agreements, publishing agreements, distribution agreements, geographic joint venture agreements, platform agreements, merchandizing agreements, customer agreements, vendor agreements or other similar agreements, in each case to the obligations extent in the Ordinary Couse of Business; (iii) terminate (expect for a termination resulting from the Investors set forth expiration of a Material Contract in Section 5.2(aaccordance with its terms) or waive any material rights under any Material Contract or Permit to any Group Company or its business, properties or assets; or (biv) not being satisfied;enter into, assume, become subject to, any Contract for the purchase, sale or delivery of materials, supplies, goods, services (other than services from any employee), equipment or other assets, the performance of which extends over a period of more than one year or that otherwise involves, in each case, an amount or value over a 12-month period (ending December 31, 2025) in excess of $500,000. (d) Notwithstanding anything herein to the contrary, Seller and the Company Group are permitted to take all actions reasonably necessary to effectuate and consummate the Pre-Closing Actions, subject to Section 5.9. (e) amend, modify, waive, terminate or otherwise alter in If any material respect the provisions, terms or conditions of any other agreements between the Group Company and any other Person that has committed to purchase shares of Series A Preferred Stock and Series B Preferred Stock or any agreements to be entered into in connection therewith; or (f) agree desires to take any of the actions restricted prohibited by this Section 6.1. Notwithstanding 5.1, Parent or the foregoingapplicable Seller may deliver written notice (which shall include a reasonable description of the proposed action(s)) to Buyer, nothing in including by email to Xxxxxx Xxxxxxx ([*****]), referring to the applicable provisions of this Section 6.1 5.1. In the event that Xxxxx consents in writing to such action (such consent not to be unreasonably withheld, conditioned or delayed), Buyer shall in any way be deemed to restrict or prohibit have waived its right to object to such action(s) and the Company's or its Subsidiaries' ability applicable Group Company shall have the right to (i) pay fees to the lenders under the Credit Agreement, (ii) enter into waivers with respect to the Credit Agreement, (iii) amend the Credit Agreement (consistent with Section 5.1(dtake such action(s)), or (iv) take any other action with respect to the Credit Agreement in accordance with past practice or in the ordinary course of business.