Common use of Conduct of Business Prior to Effective Time Clause in Contracts

Conduct of Business Prior to Effective Time. The Company covenants and agrees that, during the period from the date of this Agreement until the Effective Time, except as contemplated by this Agreement or as set forth in the corresponding subsection of Section 6.1 of the Company Disclosure Schedule, or unless Acquiror otherwise agrees (which agreement shall be confirmed in writing), the business of the Company, the Company Subsidiaries and the Nonprofit Organizations, and the use, operation, maintenance and repair of their respective assets, including the Real Property, will be conducted in the Ordinary Course of Business and the Company will use its reasonable best efforts to preserve substantially intact the Company’s business organization, material insurance policies and goodwill, to keep available the services of the Company’s present officers and other key employees and to preserve the Company’s present relationships with suppliers, employees, tenants, licensees and all other Persons with which the Company has significant business relations. Between the date of this Agreement and the Effective Time, except as otherwise expressly contemplated by this Agreement, neither the Company, any Company Subsidiary nor any Nonprofit Organization will without the prior written consent of Acquiror (which consent will not be unreasonably withheld or delayed; provided, however, that Acquiror will be entitled to take into account its plans for the Company after the Closing Date in determining whether or not to grant such consent): (a) purchase, redeem or otherwise acquire its capital stock, or issue, grant, sell, transfer, authorize or encumber any shares of capital stock, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock, or enter into any agreement, understanding or arrangement with respect to the voting of its capital stock; (b) (i) increase the compensation payable or to become payable to or fringe benefits of any current or former directors, officers, employees, independent contractors or consultants of the Company, the Company Subsidiaries or the Nonprofit Organizations (collectively, “Company Personnel”), except for increases in salary or wages in the Ordinary Course of Business to employees who are not executive officers or directors or the payment of accrued but unpaid bonuses, (ii) grant new bonuses or grant any severance or termination or transition pay to Company Personnel, (iii) establish, adopt or enter into, amend or terminate any Benefit Plan or any plan, agreement, arrangement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement (except as may be required by applicable Law), (iv) hire, or enter any agreement to hire, any employee on a full-time, part-time (other than temporary employees hired in the Ordinary Course of Business), consulting or other basis for annual compensation in excess of $25,000 or (v) enter into, renew, extend, amend, modify, terminate, cancel, waive, release or assign any employment or independent contractor agreements with any current employees of the Company or any Company Subsidiary or Nonprofit Organization; (c) (i) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure, management structure or, if applicable, ownership of the Company, any Company Subsidiary or any Nonprofit Organization, (ii) acquire or agree to acquire (by merger, consolidation, acquisition of assets or otherwise) any Person or material assets, or any voting or non-voting equity securities or similar ownership interests in any Person, (iii) split, combine, subdivide or reclassify any shares of any class or series of its capital stock or (iv) declare, set aside, make or pay any dividend or make other distribution payable in cash, stock, property or otherwise to holders of any class or series of its capital stock; (d) enter into, renew, extend or amend or modify in any material respect or terminate, cancel, waive, release or assign any contract or agreement which is or, if applicable, would be a Material Contract, other than any contract entered into in the Ordinary Course of Business in connection with the development of “The Petroglyphs” provided that, such contract would not result in sales or Liabilities in excess of $1,000,000 and was competitively bid by at least two third parties; (e) except as disclosed in the Company’s, the Company Subsidiaries’ and the Nonprofit Organizations’ capital expenditure budgets for the current fiscal year, true, correct and complete copies of which have been provided to Acquiror, commit to any capital expenditures in excess of $1,000,000; (f) manage the working capital of the Company, the Company Subsidiaries and the Nonprofit Organizations (including, but not limited to, accounts receivable and accounts payable) outside of the Ordinary Course of Business; (g) make any loans, any advances (other than travel advances to employees in the Ordinary Course of Business) or any capital contributions to, or any investments in, any other Person; (h) (i) incur or modify Indebtedness owed by the Company, any Company Subsidiary or any Nonprofit Organization, guarantee any Indebtedness of another Person or cancel any Indebtedness or other obligation owed to the Company, any Company Subsidiary or any Nonprofit Organization, (ii) redeem, repurchase, prepay or otherwise acquire any Indebtedness of the Company, any Company Subsidiary or any Nonprofit Organization or (iii) enter into hedging, swap or factoring arrangements or contracts or other similar financing instruments; (i) amend any provisions of the articles of incorporation or bylaws or other organizational documents of the Company, any Company Subsidiaries or any Nonprofit Organizations; (j) transfer, lease, license, sublicense, assign, sell, sublease, mortgage, pledge, or otherwise dispose of, in whole or in part, or incur or subject any Encumbrance on, any property or assets, (including, without limitation, any interest in any Real Property), in each case other than in the Ordinary Course of Business, or amend in any material respect, extend or terminate any Real Property Lease; (k) other than with respect to purchase orders in the Ordinary Course of Business, make any payments in excess of $1,000,000 or incur any commitment in excess of $1,000,000; (l) commence, undertake or engage in any new line of business; (m) permit any insurance policy or arrangement naming or providing for the Company, any Company Subsidiary or any Nonprofit Organization as a beneficiary or a loss payable payee to lapse, be cancelled or terminated or impaired in any way; (n) settle, dismiss, compromise, or commence any Action threatened against, relating to or involving the Company, any Company Subsidiary or any Nonprofit Organization in connection with the Shareholders’ Litigation or any business, asset or property of the Company, any Company Subsidiary or any Nonprofit Organization, or waive, assign or release any material rights or claims; (o) enter into any transaction, agreement, arrangement or understanding between (i) the Company, any Company Subsidiary or any Nonprofit Organization, on the one hand, and (ii) any other Affiliate of the Company, on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K; (p) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Cash Merger set forth in Article VII hereof being satisfied or in a violation of any provision of this Agreement; (i) make any Tax election or change any method of accounting, (ii) enter into any settlement or compromise of any Tax liability, (iii) file any amended Tax Return with respect to any Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any Tax, (vi) surrender any right to claim a material Tax refund or (vi) take any action or enter into any agreement that would jeopardize the Tax exemption of any of the Nonprofit Organizations; (r) fail to timely satisfy or cause to be timely satisfied all applicable Tax reporting and filing requirements contained in the Code with respect to the transactions contemplated by this Agreement; (s) make any changes in accounting policies or procedures other than in the Ordinary Course of Business and other than as required by GAAP or a Governmental Authority; (t) except to the extent necessary to take any actions that the Company, the Company Subsidiaries or the Nonprofit Organizations are otherwise permitted to take pursuant to Section 6.7 (and in such case only in accordance with the terms of Section 6.7), waive any of its rights under, or release any other party from, amend, or fail to enforce its rights under, any standstill provision of any agreement; (u) fail to timely file any SEC Reports required to be filed pursuant to the Exchange Act prior to the Effective Time; or (v) enter into any agreement, contract, commitment, understanding or arrangement to do any of the foregoing, or authorize, recommend, propose or announce an intention to take any of the actions described in Sections 6.1(a) through 6.1(v).

Conduct of Business Prior to Effective Time. The Company covenants parties agree that the operation of the Cordia Companies until the Effective Time is the responsibility of the respective Boards of Directors and officers of the Cordia Companies. However, in connection with such operations, Cordia and BOV each agrees that, during the period from the date of this Agreement until the Effective Time, except as contemplated by this Agreement or as set forth in the corresponding subsection of Section 6.1 of the Company Disclosure Schedule, or unless Acquiror otherwise agrees (which agreement shall be confirmed in writing), the business of the Company, the Company Subsidiaries and the Nonprofit Organizations, and the use, operation, maintenance and repair of their respective assets, including the Real Property, will be conducted in the Ordinary Course of Business and the Company will use its reasonable best efforts to preserve substantially intact the Company’s business organization, material insurance policies and goodwill, to keep available the services of the Company’s present officers and other key employees and to preserve the Company’s present relationships with suppliers, employees, tenants, licensees and all other Persons with which the Company has significant business relations. Between following the date of this Agreement and to and including the Effective Time, and except as otherwise provided herein or expressly contemplated agreed to in writing by this AgreementFCB's Chief Financial Officer or Chief Accounting Officer, neither Cordia and BOV each will, and will cause each of the Companyother Cordia Companies to, any Company Subsidiary nor any Nonprofit Organization carry on its business in and only in the regular and usual course in all material respects in substantially the same manner as such business heretofore was conducted, and, to the extent consistent in all material respects with such business and within its ability to do so, Cordia and BOV each agrees that it will, and will without cause each of the prior written consent of Acquiror (which consent will not be unreasonably withheld or delayed; providedother Cordia Companies to, however, that Acquiror will be entitled to take into account its plans for the Company after the Closing Date in determining whether or not to grant such consent):use Commercially Reasonable Efforts to: (ai) purchasepreserve intact its present business organization, redeem or otherwise acquire and preserve its capital stockrelationships with customers, or issuedepositors, grantborrowers, sellemployees, transfercreditors, authorize or encumber any shares of capital stockcorrespondents, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock, or enter into any agreement, understanding or arrangement suppliers and others having business relationships with respect to the voting of its capital stockit; (b) (i) increase the compensation payable or to become payable to or fringe benefits of any current or former directors, officers, employees, independent contractors or consultants of the Company, the Company Subsidiaries or the Nonprofit Organizations (collectively, “Company Personnel”), except for increases in salary or wages in the Ordinary Course of Business to employees who are not executive officers or directors or the payment of accrued but unpaid bonuses, (ii) grant new bonuses or grant any severance or termination or transition pay to Company Personnelmaintain all of its properties and equipment in customary repair, order and condition, ordinary wear and tear excepted; (iii) establishmaintain its books of account and records in the usual, adopt regular and ordinary manner in accordance with applicable law and regulations and sound business practices applied on a consistent basis; (iv) perform its agreements and comply with its obligations under all contracts and agreements to which it is a party, and give prompt written notice to FCB of any written claim or enter into, amend receipt of written notice from any other party thereto of any alleged default or terminate noncompliance thereunder by any Benefit Plan or any plan, agreement, arrangement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date Cordia Companies; (v) comply in all material respects with all laws, rules and regulations applicable to it, to its properties, assets or employees, and to the conduct of this Agreement its business; (vi) not change its existing Loan underwriting practices, procedures, guidelines or policies in any material respect except as may be required by applicable Law), (iv) hire, law or enter any agreement to hire, any employee on a full-time, part-time (other than temporary employees hired Regulatory Authorities or as otherwise provided in the Ordinary Course of Business), consulting or other basis for annual compensation in excess of $25,000 or (v) enter into, renew, extend, amend, modify, terminate, cancel, waive, release or assign any employment or independent contractor agreements with any current employees of the Company or any Company Subsidiary or Nonprofit Organization; (c) (i) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure, management structure or, if applicable, ownership of the Company, any Company Subsidiary or any Nonprofit Organization, (ii) acquire or agree to acquire (by merger, consolidation, acquisition of assets or otherwise) any Person or material assets, or any voting or non-voting equity securities or similar ownership interests in any Person, (iii) split, combine, subdivide or reclassify any shares of any class or series of its capital stock or (iv) declare, set aside, make or pay any dividend or make other distribution payable in cash, stock, property or otherwise to holders of any class or series of its capital stock; (d) enter into, renew, extend or amend or modify in any material respect or terminate, cancel, waive, release or assign any contract or agreement which is or, if applicable, would be a Material Contract, other than any contract entered into in the Ordinary Course of Business in connection with the development of “The Petroglyphs” provided that, such contract would not result in sales or Liabilities in excess of $1,000,000 and was competitively bid by at least two third parties; (e) except as disclosed in the Company’s, the Company Subsidiaries’ and the Nonprofit Organizations’ capital expenditure budgets for the current fiscal year, true, correct and complete copies of which have been provided to Acquiror, commit to any capital expenditures in excess of $1,000,000; (f) manage the working capital of the Company, the Company Subsidiaries and the Nonprofit Organizations (including, but not limited to, accounts receivable and accounts payable) outside of the Ordinary Course of Business; (g) make any loans, any advances (other than travel advances to employees in the Ordinary Course of Business) or any capital contributions to, or any investments in, any other Person; (h) (i) incur or modify Indebtedness owed by the Company, any Company Subsidiary or any Nonprofit Organization, guarantee any Indebtedness of another Person or cancel any Indebtedness or other obligation owed to the Company, any Company Subsidiary or any Nonprofit Organization, (ii) redeem, repurchase, prepay or otherwise acquire any Indebtedness of the Company, any Company Subsidiary or any Nonprofit Organization or (iii) enter into hedging, swap or factoring arrangements or contracts or other similar financing instruments; (i) amend any provisions of the articles of incorporation or bylaws or other organizational documents of the Company, any Company Subsidiaries or any Nonprofit Organizations; (j) transfer, lease, license, sublicense, assign, sell, sublease, mortgage, pledge, or otherwise dispose of, in whole or in part, or incur or subject any Encumbrance on, any property or assets, (including, without limitation, any interest in any Real Property), in each case other than in the Ordinary Course of Business, or amend in any material respect, extend or terminate any Real Property Lease; (k) other than with respect to purchase orders in the Ordinary Course of Business, make any payments in excess of $1,000,000 or incur any commitment in excess of $1,000,000; (l) commence, undertake or engage in any new line of business; (m) permit any insurance policy or arrangement naming or providing for the Company, any Company Subsidiary or any Nonprofit Organization as a beneficiary or a loss payable payee to lapse, be cancelled or terminated or impaired in any way; (n) settle, dismiss, compromise, or commence any Action threatened against, relating to or involving the Company, any Company Subsidiary or any Nonprofit Organization in connection with the Shareholders’ Litigation or any business, asset or property of the Company, any Company Subsidiary or any Nonprofit Organization, or waive, assign or release any material rights or claims; (o) enter into any transaction, agreement, arrangement or understanding between (i) the Company, any Company Subsidiary or any Nonprofit Organization, on the one hand, and (ii) any other Affiliate of the Company, on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K; (p) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Cash Merger set forth in Article VII hereof being satisfied or in a violation of any provision of this Agreement; (ivii) make continue to maintain federal deposit insurance for BOV's deposits as described in Paragraph 3.29; (viii) continue to maintain in force the Policies described in Paragraph 3.28 and not cancel, terminate, fail to renew, or modify any Tax election Policy, or change allow any method of accountingPolicy to be cancelled or terminated, unless the cancelled or terminated Policy is replaced with a bond or policy providing coverage, or unless the Policy as modified provides coverage, that is substantially equivalent to the Policy that is replaced or modified; and (iiix) enter into any settlement or compromise promptly notify FCB of any Tax liabilityactual or, (iii) file to the Knowledge of Cordia, threatened claim or litigation by or against any amended Tax Return with respect to of them, any Taxof their respective officers or directors in their capacities as such, (iv) change or any annual Tax accounting period, (v) enter into any closing agreement relating to any Tax, (vi) surrender any right to claim a material Tax refund or (vi) take any action or enter into any agreement that would jeopardize the Tax exemption of other Person whom any of the Nonprofit Organizations; (r) fail Cordia Companies is obligated to timely satisfy or cause to be timely satisfied all applicable Tax reporting and filing requirements contained in the Code with respect to the transactions contemplated by this Agreement; (s) make any changes in accounting policies or procedures other than in the Ordinary Course of Business and other than as required by GAAP or a Governmental Authority; (t) except to the extent necessary to take any actions that the Company, the Company Subsidiaries or the Nonprofit Organizations are otherwise permitted to take pursuant to Section 6.7 (and in such case only in accordance with the terms of Section 6.7), waive any of its rights underindemnify, or release any other party from, amend, or fail to enforce its rights under, any standstill provision of any agreement; (u) fail to timely file any SEC Reports required to be filed pursuant to the Exchange Act prior to the Effective Time; or (v) enter into any agreement, contract, commitment, understanding or arrangement to do claim against any of the foregoingCordia Companies for indemnification under their Articles of Incorporation or Bylaws or any other agreement or arrangement, or authorize, recommend, propose or announce an intention to take any together with a description of the actions described in Sections 6.1(a) through 6.1(v)circumstances surrounding any such actual or threatened claim or litigation, its then-present status and management's evaluation of such claim or litigation.

Conduct of Business Prior to Effective Time. The Company covenants and agrees that, during the period from the date of this Agreement until the Effective Time, except as contemplated by this Agreement or as set forth in the corresponding subsection of Section 6.1 of the Company Disclosure Schedule, or unless Acquiror ANM otherwise agrees (which agreement shall be confirmed in writing), the business of the Company, the Company Subsidiaries and the Nonprofit Organizations, and the use, operation, maintenance and repair of their respective assets, including the Real Property, will be conducted in the Ordinary Course of Business and the Company will use its reasonable best efforts to preserve substantially intact the Company’s business organization, material insurance policies and goodwill, to keep available the services of the Company’s present officers and other key employees and to preserve the Company’s present relationships with suppliers, employees, tenants, licensees and all other Persons with which the Company has significant business relations. Between the date of this Agreement and the Effective Time, except as otherwise expressly contemplated by this Agreement, neither the Company, any Company Subsidiary nor any Nonprofit Organization will without the prior written consent of Acquiror ANM (which consent will not be unreasonably withheld or delayed; provided, however, that Acquiror ANM will be entitled to take into account its plans for the Company after the Closing Date in determining whether or not to grant such consent): (a) purchase, redeem or otherwise acquire its capital stock, or issue, grant, sell, transfer, authorize or encumber any shares of capital stock, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock, or enter into any agreement, understanding or arrangement with respect to the voting of its capital stock; provided, however, that ANM hereby consents to the issuance of the Change in Control Shares after the date of this Agreement and at or before the Closing Date; (b) (i) increase the compensation payable or to become payable to or fringe benefits of any current or former directors, officers, employees, independent contractors or consultants of the Company, the Company Subsidiaries or the Nonprofit Organizations (collectively, “Company Personnel”), except for increases in salary or wages in the Ordinary Course of Business to employees who are not executive officers or directors or the payment of accrued but unpaid bonuses, (ii) grant new bonuses or grant any severance or termination or transition pay to Company Personnel, (iii) establish, adopt or enter into, amend or terminate any Benefit Plan or any plan, agreement, arrangement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement (except as may be required by applicable Law), (iv) hire, or enter any agreement to hire, any employee on a full-time, part-time (other than temporary employees hired in the Ordinary Course of Business), consulting or other basis for annual compensation in excess of $25,000 or (v) enter into, renew, extend, amend, modify, terminate, cancel, waive, release or assign any employment or independent contractor agreements with any current employees of the Company or any Company Subsidiary or Nonprofit Organization; (c) (i) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure, management structure or, if applicable, ownership of the Company, any Company Subsidiary or any Nonprofit Organization, (ii) acquire or agree to acquire (by merger, consolidation, acquisition of assets or otherwise) any Person or material assets, or any voting or non-voting equity securities or similar ownership interests in any Person, (iii) split, combine, subdivide or reclassify any shares of any class or series of its capital stock or (iv) declare, set aside, make or pay any dividend or make other distribution payable in cash, stock, property or otherwise to holders of any class or series of its capital stock; (d) enter into, renew, extend or amend or modify in any material respect or terminate, cancel, waive, release or assign any contract or agreement which is or, if applicable, would be a Material Contract, other than any contract entered into in the Ordinary Course of Business in connection with the development of “The Petroglyphs” provided that, such contract would not result in sales or Liabilities in excess of $1,000,000 and was competitively bid by at least two third parties; (e) except as disclosed in the Company’s, the Company Subsidiaries’ and the Nonprofit Organizations’ capital expenditure budgets for the current fiscal year, true, correct and complete copies of which have been provided to AcquirorANM, commit to any capital expenditures in excess of $1,000,000the Material Amount; (f) manage the working capital of the Company, the Company Subsidiaries and the Nonprofit Organizations (including, but not limited to, accounts receivable and accounts payable) outside of the Ordinary Course of Business; (g) make any loans, any advances (other than travel advances to employees in the Ordinary Course of Business) or any capital contributions to, or any investments in, any other Person; (h) (i) incur or modify Indebtedness owed by the Company, any Company Subsidiary or any Nonprofit Organization, guarantee any Indebtedness of another Person or cancel any Indebtedness or other obligation owed to the Company, any Company Subsidiary or any Nonprofit Organization, (ii) redeem, repurchase, prepay or otherwise acquire any Indebtedness of the Company, any Company Subsidiary or any Nonprofit Organization or (iii) enter into hedging, swap or factoring arrangements or contracts or other similar financing instruments; (i) amend any provisions of the articles of incorporation or bylaws or other organizational documents of the Company, any Company Subsidiaries or any Nonprofit Organizations; (j) transfer, lease, license, sublicense, assign, sell, sublease, mortgage, pledge, or otherwise dispose of, in whole or in part, or incur or subject any Encumbrance on, any property or assets, (including, without limitation, any interest in any Real Property), in each case other than in the Ordinary Course of Business, or amend in any material respect, extend or terminate any Real Property Lease; (k) other than with respect to purchase orders in the Ordinary Course of Business, make any payments in excess of $1,000,000 the Material Amount or incur any commitment in excess of $1,000,000the Material Amount; (l) commence, undertake or engage in any new line of business; (m) permit any insurance policy or arrangement naming or providing for the Company, any Company Subsidiary or any Nonprofit Organization as a beneficiary or a loss payable payee to lapse, be cancelled or terminated or impaired in any way; (n) settle, dismiss, compromise, or commence any Action threatened against, relating to or involving the Company, any Company Subsidiary or any Nonprofit Organization in connection with the Shareholders’ Litigation or any business, asset or property of the Company, any Company Subsidiary or any Nonprofit Organization, or waive, assign or release any material rights or claims; (o) enter into any transaction, agreement, arrangement or understanding between (i) the Company, any Company Subsidiary or any Nonprofit Organization, on the one hand, and (ii) any other Affiliate of the Company, on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K; (p) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Cash Merger set forth in Article VII hereof being satisfied or in a violation of any provision of this Agreement; (i) make any Tax election or change any method of accounting, (ii) enter into any settlement or compromise of any Tax liability, (iii) file any amended Tax Return with respect to any Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any Tax, (vi) surrender any right to claim a material Tax refund or (vi) take any action or enter into any agreement that would jeopardize the Tax exemption of any of the Nonprofit Organizations; (r) fail to timely satisfy or cause to be timely satisfied all applicable Tax reporting and filing requirements contained in the Code with respect to the transactions contemplated by this Agreement; (s) make any changes in accounting policies or procedures other than in the Ordinary Course of Business and other than as required by GAAP or a Governmental Authority; (t) except to the extent necessary to take any actions that the Company, the Company Subsidiaries or the Nonprofit Organizations are otherwise permitted to take pursuant to Section 6.7 (and in such case only in accordance with the terms of Section 6.7), waive any of its rights under, or release any other party from, amend, or fail to enforce its rights under, any standstill provision of any agreement; (u) fail to timely file any SEC Reports required to be filed pursuant to the Exchange Act prior to the Effective Time; or (v) enter into any agreement, contract, commitment, understanding or arrangement to do any of the foregoing, or authorize, recommend, propose or announce an intention to take any of the actions described in Sections 6.1(a) through 6.1(v).

Conduct of Business Prior to Effective Time. The Company covenants and agrees that, during the period from Between the date hereof and the earlier of the Effective Time or the termination of this Agreement until the Effective TimeAgreement, except as contemplated by this Agreement or Agreement, the Asset Purchase Agreement, the AHM Purchase Agreement, the Transition Agreements, and pursuant to the Disposition of the Mortgage Banking Business in accordance with Section 6.8 and subject to requirements of Law, the Company shall not (and shall cause the Company Subsidiaries to not), except as set forth provided in the corresponding subsection of Section 6.1 of the Company Disclosure ScheduleLetter, or unless Acquiror otherwise agrees (which agreement shall be confirmed in writing), the business of the Company, the Company Subsidiaries and the Nonprofit Organizations, and the use, operation, maintenance and repair of their respective assets, including the Real Property, will be conducted in the Ordinary Course of Business and the Company will use its reasonable best efforts to preserve substantially intact the Company’s business organization, material insurance policies and goodwill, to keep available the services of the Company’s present officers and other key employees and to preserve the Company’s present relationships with suppliers, employees, tenants, licensees and all other Persons with which the Company has significant business relations. Between the date of this Agreement and the Effective Time, except as otherwise expressly contemplated by this Agreement, neither the Company, any Company Subsidiary nor any Nonprofit Organization will without the prior written consent of Acquiror the Parent (which consent will shall not be unreasonably withheld withheld, delayed or delayed; provided, however, that Acquiror will be entitled to take into account its plans for the Company after the Closing Date in determining whether or not to grant such consentconditioned): (a) conduct the business of the Company and the Company Subsidiaries other than in the ordinary and usual course consistent with past practice, or fail to use commercially reasonable efforts to preserve intact their business organizations and maintain their existing relations with customers, suppliers, employees and business associates, or voluntarily take any action which, at the time taken, is reasonably likely to materially impair the Company’s ability to perform its obligations under this Agreement; (b) engage in any material new lines of business or make any material changes to its existing lines of business; (c) issue, sell, grant or otherwise permit to become outstanding, or authorize the creation of, any additional Company Stock (except pursuant to the exercise of Company Stock Options outstanding as of the date hereof), any other securities (including long term debt) of the Company or the Company Subsidiaries, or any rights, stock appreciation rights, options or securities to acquire any Company Stock, or any other securities (including long term debt) of the Company or the Company Subsidiaries or enter into any agreements to take any such actions; (d) split, combine or reclassify any shares of capital stock or other securities of the Company or the Company Subsidiaries; (e) purchase, redeem or otherwise acquire its any capital stockstock or other securities of the Company or the Company Subsidiaries or any rights, or issue, grant, sell, transfer, authorize or encumber any shares of capital stockoptions, or securities convertible into to acquire any capital stock or exchangeable forother securities of the Company or the Company Subsidiaries (other than the redemption upon maturity of the Company’s subordinated notes, and the issuance of Company Stock upon the exercise of Company Stock Options that are outstanding as of the date hereof in accordance with their present terms); (f) except as in effect on the date hereof and as disclosed in the Company Disclosure Letter, enter into, or optionstake any action to cause any holders of Company Stock to enter into, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock, or enter into any agreement, understanding or arrangement with respect commitment relating to the rights of holders of Company Stock to vote any Common Stock, or cooperate in any formation of any voting of its capital stocktrust or similar arrangement relating to such shares, other than the Shareholders Agreements; (bg) except for the Spin-Off or as provided in Section 6.9 for dividends paid after the Pre-Closing Balance Sheet Date to the Company’s shareholders following prior written notice thereof to the Parent, (i) make, declare, pay or set aside for payment any dividend, other than dividends from wholly-owned Company Subsidiaries to the Company, (ii) declare or make any distribution on any shares of Company Stock or (iii) directly or indirectly adjust, split, combine, redeem, reclassify, purchase or otherwise acquire any shares of Company Stock; (i) issue, sell or otherwise permit to become outstanding, (ii) transfer, mortgage, encumber or otherwise dispose of, (iii) permit the creation of any Lien in respect of, or (iv) amend or modify the terms of, any equity interests held in a Company Subsidiary; (i) amend its Articles of Incorporation or Bylaws; (j) except in accordance with Section 7.8, as required pursuant to existing written, binding agreements in effect prior to the date hereof, as required by applicable Law or in the ordinary and usual course of business consistent with past practices, (i) increase the salary, incentive compensation payable or to become other benefits (including bonus payments) payable to any director, officer or fringe benefits employee of Company or any current Company Subsidiary or former directors, officers, employees, independent contractors or consultants of the Company, the Company Subsidiaries or the Nonprofit Organizations (collectively, “Company Personnel”), except for increases in salary or wages in the Ordinary Course of Business to employees who are not executive officers or directors or the payment of accrued but unpaid bonuses, (ii) grant new bonuses or grant any severance or termination or transition pay to Company Personnel, (iii) establish, adopt or enter into, amend amend, modify or terminate any Benefit Plan employment, consulting, severance, change in control or similar agreements or arrangements with any director, officer or employee of the Company or any planCompany Subsidiary other than any such agreements for new hires not to exceed $500,000 in the aggregate, agreement, arrangement, program, policy, trust, fund provided that in no event shall the Company or other arrangement that would be a Benefit Plan if it were in existence as any Company Subsidiary enter into any employment agreement with any officer with the title of executive vice president or higher without the prior written consent of the date of this Agreement Parent; (k) enter into, establish, adopt, amend, modify or terminate (except (i) as may be required by applicable Law), (ivii) hirepursuant to an existing written binding agreement in effect prior to the date hereof or (iii) the regular renewals of insurance contracts) any pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or enter any trust agreement to hire(or similar arrangement) related thereto, in respect of any director, officer or employee on a full-timeof, part-time or independent contractor with respect to, the Company or the Company Subsidiaries (other than temporary employees hired in or any dependent or beneficiary of the Ordinary Course of Businessforegoing Persons), consulting ; (l) make any capital expenditure or other basis for annual compensation commitments with respect thereto in excess of $25,000 250,000 with respect to any item or project or in the aggregate with respect to any related items or projects, except for capital expenditures described in the Company Disclosure Letter and ordinary repairs, renewals and replacements; (vm) compromise or otherwise settle or adjust any assertion or claim of a material deficiency in Taxes, enter intointo any material closing agreement, renewextend the statute of limitations with any Tax Authority or file any pleading in court in any material Tax litigation or any appeal from an asserted material deficiency, extendsurrender a right to claim a refund of material Taxes or file or amend any material income or other federal, foreign, state or local Tax return, or make any material Tax election that is inconsistent with the Company’s current Tax election practices or that concerns a matter as to which the Company has no current Tax election practice; (n) change its material Tax or accounting policies and procedures or any method or period of accounting unless required by GAAP, regulatory accounting principles, changes in Law or a Governmental Entity or a Tax Authority; (o) other than in the ordinary course and in compliance with applicable Law, grant or commit to grant any extension of credit or amend the terms of any such credit outstanding on the date hereof to any executive officer, director or holder of 10% or more of the outstanding Company Stock, or any Affiliate of such Person; (p) close or relocate any offices at which business is conducted or open any new offices, except as described in the Company Disclosure Letter, or except as necessary in the event of damage or destruction of existing offices in order to continue the business conducted at such offices; (q) grant any Person a power of attorney or similar authority, other than in the ordinary and usual course of business consistent with past practice; (r) except in accordance with Sections 6.1(j) and 6.1(k), amend, modifymodify or renew any Company Scheduled Contract or enter into any agreement or contract that would be required to be a Company Scheduled Contract under Section 4.19 or as set forth in Section 6.1(r) of the Company Disclosure Letter; provided, terminate, cancel, waive, release that the Company and any Company Subsidiary may (i) renew an existing Company Scheduled Contract in the ordinary and usual course of business on substantially equivalent terms if the total obligation of the Company and any Company Subsidiary thereunder (including any cancellation or assign termination payments or the effect of any employment required minimum notice periods prior to cancellation or independent contractor termination) shall not exceed $150,000 and (ii) enter into ordinary course business and operations transaction agreements that (A) do not restrict the Company or the Company Subsidiaries (or any Affiliate of the Company or the Company Subsidiaries or the Surviving Entity (including the Merger Sub and its Subsidiaries) after the Effective Time) from competing in any line of business with any current employees Person or using or employing the services of any Person or (B) call for aggregate annual payments of $150,000 or more and is not terminable on 60 days or less notice without payment of any material termination fee or penalty; (s) except in the ordinary and usual course of business and consistent with past practices, sell, transfer, mortgage, encumber or otherwise dispose of or permit the creation of any Lien for sales of loans, debt securities or similar investments (except for a Lien for Taxes not yet due and payable) in respect of, or discontinue any portion of, any assets, deposits or properties material to the business or financial position of the Company or any Company Subsidiary or Nonprofit Organizationrelease or waive any material claim; (ct) acquire (other than by way of foreclosures or acquisitions of control in a bona fide fiduciary capacity or in satisfaction of debts previously contracted in good faith, in each case in the ordinary and usual course of business consistent with past practice) all or any portion of, the assets, business, deposits or properties of any other entity or acquire mortgage servicing rights except in connection with existing correspondent lending relationships in the ordinary and usual course of business consistent with past practice; (u) (i) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure, management structure or, if applicable, ownership of the Company, any Company Subsidiary or any Nonprofit Organization, (ii) acquire or agree to acquire (by merger, consolidation, acquisition of assets or otherwise) any Person or material assets, or any voting or non-voting equity securities or similar ownership interests in any Person, (iii) split, combine, subdivide or reclassify any shares of any class or series of its capital stock or (iv) declare, set aside, make or pay any dividend or make other distribution payable in cash, stock, property or otherwise to holders of any class or series of its capital stock; (d) enter into, renew, extend or amend or modify in any material respect or terminate, cancel, waive, release or assign any contract or agreement which is or, if applicable, would be a Material Contract, other than any contract entered into in the Ordinary Course of Business in connection with the development of “The Petroglyphs” provided that, such contract would not result in sales or Liabilities in excess of $1,000,000 and was competitively bid by at least two third parties; (e) except as disclosed in the Company’s, the Company Subsidiaries’ and the Nonprofit Organizations’ capital expenditure budgets for the current fiscal year, true, correct and complete copies of which have been provided to Acquiror, commit to any capital expenditures in excess of $1,000,000; (f) manage the working capital of the Company, the Company Subsidiaries and the Nonprofit Organizations (including, but not limited to, accounts receivable and accounts payable) outside of the Ordinary Course of Business; (g) make any loans, any advances (other than travel advances to employees in the Ordinary Course of Business) or any capital contributions to, or any investments in, any other Person; (h) (i) incur or modify Indebtedness owed by the Company, any Company Subsidiary or any Nonprofit Organization, guarantee any Indebtedness of another Person or cancel any Indebtedness or other obligation owed to the Company, any Company Subsidiary or any Nonprofit Organization, (ii) redeem, repurchase, prepay or otherwise acquire any Indebtedness of the Company, any Company Subsidiary or any Nonprofit Organization or (iii) enter into hedging, swap or factoring arrangements or contracts or other similar financing instruments; (i) amend any provisions of the articles of incorporation or bylaws or other organizational documents of the Company, any Company Subsidiaries or any Nonprofit Organizations; (j) transfer, lease, license, sublicense, assign, sell, sublease, mortgage, pledge, or otherwise dispose of, in whole or in part, or incur or subject any Encumbrance on, any property or assets, (including, without limitation, any interest in any Real Property), in each case other than in the Ordinary Course of Business, or amend in any material respect, extend or terminate any Real Property Lease; (k) other than with respect to purchase orders in the Ordinary Course of Business, make any payments in excess of $1,000,000 or incur any commitment in excess of $1,000,000; (l) commence, undertake or engage in any new line of business; (m) permit any insurance policy or arrangement naming or providing for the Company, any Company Subsidiary or any Nonprofit Organization as a beneficiary or a loss payable payee to lapse, be cancelled or terminated or impaired in any way; (n) settle, dismiss, compromise, or commence any Action threatened against, relating to or involving the Company, any Company Subsidiary or any Nonprofit Organization in connection with the Shareholders’ Litigation or any business, asset or property of the Company, any Company Subsidiary or any Nonprofit Organization, or waive, assign or release any material rights or claims; (o) enter into any transaction, agreement, arrangement or understanding between (i) the Company, any Company Subsidiary or any Nonprofit Organization, on the one hand, and (ii) any other Affiliate of the Company, on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K; (p) take any action that is intended which would or may could reasonably be expected to result (A) prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368(a)(1)(A) of the Code or the ability of counsel to render the opinions described in Section 9.7 of this Agreement, (B) materially adversely affect the ability of the Company to obtain any necessary approval of any Governmental Entity required for the transactions contemplated hereby, (C) materially adversely affect the Company’s ability to perform its representations covenants and warranties set forth in agreements under this Agreement being or becoming untrue in any material respectAgreement, or (D) result in any of the conditions to the Cash Merger performance of the Parent’s or the Company’s obligations hereunder, as set forth in Article VII hereof Articles IX, X or XI herein not being satisfied satisfied; or (ii) engage in any new line of business or make any acquisition that would not be permissible for a violation United States bank holding company (as defined in the Bank Holding Company Act of 1956) or would subject the Company, Parent or any Subsidiary of either to material regulation by a Regulatory Authority that does not presently regulate such company or to regulation by a Regulatory Authority that is materially different from current regulation; (v) Reserved; (w) except to the extent directly related to loans, leases, advances, credit enhancements, other extensions of credit, commitments and interest bearing assets of the Company and the Company Subsidiaries that have been classified by any bank examiner (whether regulatory or internal) as “Other Loans Specially Mentioned,” “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Credit Risk Assets,” or “Concerned Loans,” pay, discharge, settle or compromise any claim, action, litigation, arbitration or proceeding, other than any such payment, discharge, settlement or compromise in the ordinary and usual course of business consistent with past practice that involves solely money damages in the amount not in excess of $100,000 individually or $500,000 in the aggregate, and that does not create precedent for other pending or potential claims, actions, litigation, arbitration or proceedings, except to the extent any such claim, action, litigation, arbitration or proceeding has been specifically reserved for and identified in Section 6.1(w) of the Company Disclosure Letter, provided that any such payment, discharge, settlement or compromise shall not exceed the dollar amount of such identified reserve for such matter; (x) incur any indebtedness for borrowed money or assume, guaranty, endorse or otherwise as an accommodation become responsible for the obligations of any provision other Person, except for (i) in connection with banking transactions in the ordinary and usual course of this Agreementbusiness, (ii) short-term borrowings (including refinancings thereof) made at prevailing market rates and terms consistent with prior practice, (iii) interbank borrowings made in the ordinary course of its banking business or (iv) indebtedness of the Company or any of its wholly-owned Subsidiaries to the Company or any of its wholly-owned Subsidiaries deposits, FHLB advances, repurchase agreements, bankers’ acceptances, and “treasury tax and loan” accounts established in the ordinary and usual course of business and transactions in “federal funds” or which contains financial covenants or other restrictions (other than those relating to the payment of principal and interest when due) which would be applicable on or after the Effective Time to the Parent or any Subsidiary of the Parent; provided, however, that in no event shall the Company acquire FHLB advances with maturities of a term longer than one year without the prior written consent of the Parent; (i) make extend credit for new loans, renewals and extensions on an unsecured basis to any Tax election or change any method of accountingPerson in the aggregate over $500,000, (ii) enter into extend credit to any settlement Person who is a new borrower on a secured basis in the aggregate over $1,500,000, or compromise in the case of any Tax liabilityOxford Trust Loans and in accordance with the existing policies related thereto, in the aggregate over $5,000,000, (iii) file any amended Tax Return with respect extend credit for renewals or extensions to any TaxPerson who is an existing borrower on a secured basis in the aggregate over $3,000,000, (iv) change extend credit for indirect loans to any annual Tax accounting periodPerson in the aggregate over $150,000, or (v) enter into any closing agreement relating extend credit to any Taxindividual consumers for loans, renewals and extensions of residential mortgage loans (including for construction of a residence) (A) in the aggregate over $1,000,000, (viB) surrender any right to claim a material Tax refund in the aggregate over $100,000 but less than $1,000,000, unless the combined loan-to-value ratio after giving effect thereto is less than 80% or (viC) take any action in the aggregate equal to or enter into any agreement that would jeopardize less than $100,000, unless the Tax exemption of any of the Nonprofit Organizationscombined loan-to-value ratio after giving effect thereto is less than 100%; (rz) fail to timely satisfy acquire or cause to be timely satisfied all applicable Tax reporting extend credit on Lending Tree originations outside of the States of Indiana, Ohio, Pennsylvania, West Virginia and filing requirements contained in the Code with respect to the transactions contemplated by this AgreementMichigan; (saa) make any changes in accounting policies terminate or procedures other than in amend the Ordinary Course of Business relationship with Affinity Financial Corporation, including terminating or amending the Joint Marketing Agreement, dated November 12, 2004, between Union Federal and other than as required by GAAP or a Governmental AuthorityAffinity Financial Corporation and the Deposit Services Agreement, dated November 12, 2004, between Union Federal and Affinity Financial Corporation; (tbb) except to amend, modify, renew or terminate any contract with Bisys or any of its Affiliates; (cc) increase commitments for, or the extent necessary balance of, Affinity Financial Corporation CF tranches; (dd) engage in “pooled loan” purchases (bulk and flow) of commercial real estate, commercial or retail loans; or (ee) agree or make any commitment to take any actions prohibited by this Section 6.1. In the event that the CompanyParent does not respond in writing to the Company within five Business Days of a written request for the Company to engage in any of the actions for which Parent’s prior written consent is required pursuant to this Section 6.1, the Parent shall be deemed to have consented to such action. Any request by the Company Subsidiaries or response thereto by the Nonprofit Organizations are otherwise permitted to take pursuant to Section 6.7 (and in such case only Parent shall be made in accordance with the terms notice provisions of Section 6.7)13.2, waive and any of its rights under, or release any other party from, amend, or fail to enforce its rights under, any standstill provision of any agreement; (u) fail to timely file any SEC Reports required to be filed request by the Company shall also state that it is a request pursuant to the Exchange Act prior this Section 6.1 and that a failure to the Effective Time; or (v) enter into any agreement, contract, commitment, understanding or arrangement to do any of the foregoing, or authorize, recommend, propose or announce an intention to take any of the actions described in Sections 6.1(a) through 6.1(v)respond within five Business Days shall constitute consent.

Conduct of Business Prior to Effective Time. The Company covenants and agrees that, during the period from the date of this Agreement until the Effective Time, except as contemplated by this Agreement or as set forth in the corresponding subsection of Section 6.1 of the Company Disclosure Schedule, or unless Acquiror otherwise agrees (which agreement shall be confirmed in writing), the business of the Company, the Company Subsidiaries and the Nonprofit Organizations, and the use, operation, maintenance and repair of their respective assets, including the Real Property, will be conducted in the Ordinary Course of Business and the Company will use its reasonable best efforts to preserve substantially intact the Company’s business organization, material insurance policies and goodwill, to keep available the services of the Company’s present officers and other key employees and to preserve the Company’s present relationships with suppliers, employees, tenants, licensees and all other Persons with which the Company has significant business relations. Between the date of this Agreement and the Effective Time, except as otherwise expressly contemplated by this Agreement, neither the Company, any Company Subsidiary nor any Nonprofit Organization will without the prior written consent of Acquiror (which consent will not be unreasonably withheld or delayed; provided, however, that Acquiror will be entitled to take into account its plans for the Company after the Closing Date in determining whether or not to grant such consent): (a) purchase, redeem or otherwise acquire its capital stock, or issue, grant, sell, transfer, authorize or encumber any shares of capital stock, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock, or enter into any agreement, understanding or arrangement with respect to the voting of its capital stock; (b) (i) increase the compensation payable or to become payable to or fringe benefits of any current or former directors, officers, employees, independent contractors or consultants of the Company, the Company Subsidiaries or the Nonprofit Organizations (collectively, “Company Personnel”), except for increases in salary or wages in the Ordinary Course of Business to employees who are not executive officers or directors or the payment of accrued but unpaid bonuses, (ii) grant new bonuses or grant any severance or termination or transition pay to Company Personnel, (iii) establish, adopt or enter into, amend or terminate any Benefit Plan or any plan, agreement, arrangement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement (except as may be required by applicable Law), (iv) hire, or enter any agreement to hire, any employee on a full-time, part-time (other than temporary employees hired in the Ordinary Course of Business), consulting or other basis for annual compensation in excess of $25,000 or (v) enter into, renew, extend, amend, modify, terminate, cancel, waive, release or assign any employment or independent contractor agreements with any current employees of the Company or any Company Subsidiary or Nonprofit Organization; (c) (i) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure, management structure or, if applicable, ownership of the Company, any Company Subsidiary or any Nonprofit Organization, (ii) acquire or agree to acquire (by merger, consolidation, acquisition of assets or otherwise) any Person or material assets, or any voting or non-voting equity securities or similar ownership interests in any Person, (iii) split, combine, subdivide or reclassify any shares of any class or series of its capital stock or (iv) declare, set aside, make or pay any dividend or make other distribution payable in cash, stock, property or otherwise to holders of any class or series of its capital stock; (d) enter into, renew, extend or amend or modify in any material respect or terminate, cancel, waive, release or assign any contract or agreement which is or, if applicable, would be a Material Contract, other than any contract entered into in the Ordinary Course of Business in connection with the development of “The Petroglyphs” ”; provided that, such contract would not result in sales or Liabilities in excess of $1,000,000 and was competitively bid by at least two third parties; (e) except as disclosed in the Company’s, the Company Subsidiaries’ and the Nonprofit Organizations’ capital expenditure budgets for the current fiscal year, true, correct and complete copies of which have been provided to Acquiror, commit to any capital expenditures in excess of $1,000,000the Material Amount; (f) manage the working capital of the Company, the Company Subsidiaries and the Nonprofit Organizations (including, but not limited to, accounts receivable and accounts payable) outside of the Ordinary Course of Business; (g) make any loans, any advances (other than travel advances to employees in the Ordinary Course of Business) or any capital contributions to, or any investments in, any other Person; (h) (i) incur or modify Indebtedness owed by the Company, any Company Subsidiary or any Nonprofit Organization, guarantee any Indebtedness of another Person or cancel any Indebtedness or other obligation owed to the Company, any Company Subsidiary or any Nonprofit Organization, (ii) redeem, repurchase, prepay or otherwise acquire any Indebtedness of the Company, any Company Subsidiary or any Nonprofit Organization or (iii) enter into hedging, swap or factoring arrangements or contracts or other similar financing instruments; (i) amend any provisions of the articles of incorporation or bylaws or other organizational documents of the Company, any Company Subsidiaries or any Nonprofit Organizations; (j) transfer, lease, license, sublicense, assign, sell, sublease, mortgage, pledge, or otherwise dispose of, in whole or in part, or incur or subject any Encumbrance on, any property or assets, (including, without limitation, any interest in any Real Property), in each case other than in the Ordinary Course of Business, or amend in any material respect, extend or terminate any Real Property Lease; (k) other than with respect to purchase orders in the Ordinary Course of Business, make any payments in excess of $1,000,000 the Material Amount or incur any commitment in excess of $1,000,000the Material Amount; (l) commence, undertake or engage in any new line of business; (m) permit any insurance policy or arrangement naming or providing for the Company, any Company Subsidiary or any Nonprofit Organization as a beneficiary or a loss payable payee to lapse, be cancelled or terminated or impaired in any way; (n) settle, dismiss, compromise, or commence any Action threatened against, relating to or involving the Company, any Company Subsidiary or any Nonprofit Organization in connection with the Shareholders’ Litigation or any business, asset or property of the Company, any Company Subsidiary or any Nonprofit Organization, or waive, assign or release any material rights or claims; (o) enter into any transaction, agreement, arrangement or understanding between (i) the Company, any Company Subsidiary or any Nonprofit Organization, on the one hand, and (ii) any other Affiliate of the Company, on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K; (p) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Cash Merger set forth in Article VII hereof being satisfied or in a violation of any provision of this Agreement; (i) make any Tax election or change any method of accounting, (ii) enter into any settlement or compromise of any Tax liability, (iii) file any amended Tax Return with respect to any Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any Tax, (vi) surrender any right to claim a material Tax refund or (vi) take any action or enter into any agreement that would jeopardize the Tax exemption of any of the Nonprofit Organizations; (r) fail to timely satisfy or cause to be timely satisfied all applicable Tax reporting and filing requirements contained in the Code with respect to the transactions contemplated by this Agreement; (s) make any changes in accounting policies or procedures other than in the Ordinary Course of Business and other than as required by GAAP or a Governmental Authority; (t) except to the extent necessary to take any actions that the Company, the Company Subsidiaries or the Nonprofit Organizations are otherwise permitted to take pursuant to Section 6.7 (and in such case only in accordance with the terms of Section 6.7), waive any of its rights under, or release any other party from, amend, or fail to enforce its rights under, any standstill provision of any agreement; (u) fail to timely file any SEC Reports required to be filed pursuant to the Exchange Act prior to the Effective Time; or (v) enter into any agreement, contract, commitment, understanding or arrangement to do any of the foregoing, or authorize, recommend, propose or announce an intention to take any of the actions described in Sections 6.1(a) through 6.1(v).

Conduct of Business Prior to Effective Time. The Company covenants and agrees that, during the period from the date of this Agreement until the Effective Time, except as contemplated by this Agreement or as set forth in the corresponding subsection of Section 6.1 of the Company Disclosure Schedule, or unless Acquiror otherwise agrees (which agreement shall be confirmed in writing), the business of the Company, the Company Subsidiaries and the Nonprofit Organizations, and the use, operation, maintenance and repair of their respective assets, including the Real Property, will be conducted in the Ordinary Course of Business and the Company will use its reasonable best efforts to preserve substantially intact the Company’s 's business organization, material insurance policies and goodwill, to keep available the services of the Company’s 's present officers and other key employees and to preserve the Company’s 's present relationships with suppliers, employees, tenants, licensees and all other Persons with which the Company has significant business relations. Between the date of this Agreement and the Effective Time, except as otherwise expressly contemplated by this Agreement, neither the Company, any Company Subsidiary nor any Nonprofit Organization will without the prior written consent of Acquiror (which consent will not be unreasonably withheld or delayed; provided, however, that Acquiror will be entitled to take into account its plans for the Company after the Closing Date in determining whether or not to grant such consent): (a) purchase, redeem or otherwise acquire its capital stock, or issue, grant, sell, transfer, authorize or encumber any shares of capital stock, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock, or enter into any agreement, understanding or arrangement with respect to the voting of its capital stock; provided, however, that Acquiror hereby consents to the issuance of the Change in Control Shares after the date of this Agreement and at or before the Closing Date; (b) (i) increase the compensation payable or to become payable to or fringe benefits of any current or former directors, officers, employees, independent contractors or consultants of the Company, the Company Subsidiaries or the Nonprofit Organizations (collectively, “"Company Personnel”"), except for increases in salary or wages in the Ordinary Course of Business to employees who are not executive officers or directors or the payment of accrued but unpaid bonuses, (ii) grant new bonuses or grant any severance or termination or transition pay to Company Personnel, (iii) establish, adopt or enter into, amend or terminate any Benefit Plan or any plan, agreement, arrangement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement (except as may be required by applicable Law), (iv) hire, or enter any agreement to hire, any employee on a full-time, part-time (other than temporary employees hired in the Ordinary Course of Business), consulting or other basis for annual compensation in excess of $25,000 or (v) enter into, renew, extend, amend, modify, terminate, cancel, waive, release or assign any employment or independent contractor agreements with any current employees of the Company or any Company Subsidiary or Nonprofit Organization; (c) (i) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure, management structure or, if applicable, ownership of the Company, any Company Subsidiary or any Nonprofit Organization, (ii) acquire or agree to acquire (by merger, consolidation, acquisition of assets or otherwise) any Person or material assets, or any voting or non-voting equity securities or similar ownership interests in any Person, (iii) split, combine, subdivide or reclassify any shares of any class or series of its capital stock or (iv) declare, set aside, make or pay any dividend or make other distribution payable in cash, stock, property or otherwise to holders of any class or series of its capital stock; (d) enter into, renew, extend or amend or modify in any material respect or terminate, cancel, waive, release or assign any contract or agreement which is or, if applicable, would be a Material Contract, other than any contract entered into in the Ordinary Course of Business in connection with the development of “The Petroglyphs” provided that, such contract would not result in sales or Liabilities in excess of $1,000,000 and was competitively bid by at least two third parties; (e) except as disclosed in the Company’s's, the Company Subsidiaries’ ' and the Nonprofit Organizations’ ' capital expenditure budgets for the current fiscal year, true, correct and complete copies of which have been provided to Acquiror, commit to any capital expenditures in excess of $1,000,000the Material Amount; (f) manage the working capital of the Company, the Company Subsidiaries and the Nonprofit Organizations (including, but not limited to, accounts receivable and accounts payable) outside of the Ordinary Course of Business; (g) make any loans, any advances (other than travel advances to employees in the Ordinary Course of Business) or any capital contributions to, or any investments in, any other Person; (h) (i) incur or modify Indebtedness owed by the Company, any Company Subsidiary or any Nonprofit Organization, guarantee any Indebtedness of another Person or cancel any Indebtedness or other obligation owed to the Company, any Company Subsidiary or any Nonprofit Organization, (ii) redeem, repurchase, prepay or otherwise acquire any Indebtedness of the Company, any Company Subsidiary or any Nonprofit Organization or (iii) enter into hedging, swap or factoring arrangements or contracts or other similar financing instruments; (i) amend any provisions of the articles of incorporation or bylaws or other organizational documents of the Company, any Company Subsidiaries or any Nonprofit Organizations; (j) transfer, lease, license, sublicense, assign, sell, sublease, mortgage, pledge, or otherwise dispose of, in whole or in part, or incur or subject any Encumbrance on, any property or assets, (including, without limitation, any interest in any Real Property), in each case other than in the Ordinary Course of Business, or amend in any material respect, extend or terminate any Real Property Lease; (k) other than with respect to purchase orders in the Ordinary Course of Business, make any payments in excess of $1,000,000 the Material Amount or incur any commitment in excess of $1,000,000the Material Amount; (l) commence, undertake or engage in any new line of business; (m) permit any insurance policy or arrangement naming or providing for the Company, any Company Subsidiary or any Nonprofit Organization as a beneficiary or a loss payable payee to lapse, be cancelled or terminated or impaired in any way; (n) settle, dismiss, compromise, or commence any Action threatened against, relating to or involving the Company, any Company Subsidiary or any Nonprofit Organization in connection with the Shareholders’ Litigation or any business, asset or property of the Company, any Company Subsidiary or any Nonprofit Organization, or waive, assign or release any material rights or claims; (o) enter into any transaction, agreement, arrangement or understanding between (i) the Company, any Company Subsidiary or any Nonprofit Organization, on the one hand, and (ii) any other Affiliate of the Company, on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K; (p) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Cash Merger set forth in Article VII hereof being satisfied or in a violation of any provision of this Agreement; (i) make any Tax election or change any method of accounting, (ii) enter into any settlement or compromise of any Tax liability, (iii) file any amended Tax Return with respect to any Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any Tax, (vi) surrender any right to claim a material Tax refund or (vi) take any action or enter into any agreement that would jeopardize the Tax exemption of any of the Nonprofit Organizations; (r) fail to timely satisfy or cause to be timely satisfied all applicable Tax reporting and filing requirements contained in the Code with respect to the transactions contemplated by this Agreement; (s) make any changes in accounting policies or procedures other than in the Ordinary Course of Business and other than as required by GAAP or a Governmental Authority; (t) except to the extent necessary to take any actions that the Company, the Company Subsidiaries or the Nonprofit Organizations are otherwise permitted to take pursuant to Section 6.7 (and in such case only in accordance with the terms of Section 6.7), waive any of its rights under, or release any other party from, amend, or fail to enforce its rights under, any standstill provision of any agreement; (u) fail to timely file any SEC Reports required to be filed pursuant to the Exchange Act prior to the Effective Time; or (v) enter into any agreement, contract, commitment, understanding or arrangement to do any of the foregoing, or authorize, recommend, propose or announce an intention to take any of the actions described in Sections 6.1(a) through 6.1(v).