Common use of Conduct of Business Clause in Contracts

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): (i) the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]

Conduct of Business. The following shall be true in all material respects as of During the Closing Date: Except Interim Period, each Acquiror Party shall, except (i) as otherwise expressly provided or permitted, or contemplated, explicitly contemplated by this Agreement or the Plan Summary Term Sheet other Transaction Documents or its Governing Documents, (includingii) as required by Law, without limitation, or (iii) as consented to by the Company in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser writing (which consent such Purchaser agrees shall not be unreasonably conditioned, withheld, conditioned or delayed): (i) the Company shall not have ), (A) declared, set aside or paid any dividends on, or made any other distributions use reasonable best efforts to operate its business in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, ordinary course consistent with past practice; and (B) splitcomply in all material respects with its Governing Documents. Without limiting the generality of the foregoing, combined except as consented to by the Company in writing (which consent shall not be unreasonably conditioned, withheld or reclassified any delayed) Acquiror shall not, and PubCo shall cause its Subsidiaries not to, except as otherwise contemplated by this Agreement or the other Transaction Documents or as required by Law: (a) change, modify or amend the Trust Agreement (in the case of Acquiror only) or its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stockGoverning Documents, or (C) purchasedseek any approval from its shareholders to do so, redeemed or otherwise acquired (other than except as set forth on Section 7.1(r)(i) of contemplated by the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such sharesTransaction Proposals; (iib) the Company shall not have amended the Company’s certificate of incorporation merge, consolidate or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired amalgamate with or agreed to acquire by merging or consolidating withinto, or acquire (by purchasing a substantial portion of the stock, assets of or other ownership interests equity in, or substantial portion of assets of, or by any other manner) any other Person or be acquired by any other Person; (c) (x) make or declare any dividend or distribution to its shareholders or make any other distributions in respect of any of its Equity Securities, (y) split, combine, reclassify or otherwise amend any business terms of its Equity Securities, or (z) purchase, repurchase, redeem or otherwise acquire any corporationof its issued and outstanding Equity Securities, partnershipother than, associationin the case of Acquiror only, joint venture, limited liability company or other entity or division thereof redemptions of Acquiror Common Stock made as part of the Acquiror Share Redemptions; (d) except (A) in the ordinary course of businessbusiness consistent with past practice, (A) make or change any material election in respect of material Taxes, (B) for transactions materially amend, modify or otherwise change any filed material Tax Return, (C) adopt or request permission of any Tax authority to change any accounting method in respect of material Taxes, (D) enter into any closing agreement in respect of material Taxes or enter into any Tax sharing or similar agreement (other than customary commercial Contracts not primarily related to Taxes), (E) settle any claim or assessment in respect of material Taxes, or (F) consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes or with respect to joint ventures existing on the date hereof valued at less than $10,000,000 any material Tax attribute that would give rise to any claim or (C) for transactions valued at less than $10,000,000 in the aggregateassessment of Taxes; (ive) none except as contemplated by this Agreement or the Transactions, take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatment; (f) other than as expressly required by any Transaction Document, enter into, renew or amend in any material respect, any Contract with any of the Company PropertiesSponsors or an Affiliate of Acquiror Party (including (i) any Person in which any of the Sponsors has a direct or indirect legal or beneficial ownership interest of five percent (5%) or greater and (ii) any Person who has a direct or indirect legal or beneficial ownership interest of five percent (5%) or greater in any of the Sponsors); (g) incur, Non-Controlling Properties or Identified Assets shall have been sold guarantee or otherwise transferredbecome liable for any Indebtedness, except, other than (Ai) liabilities incurred in the ordinary course of businessbusiness and in an amount, individually or in the aggregate, not to exceed $100,000 and (ii) any Acquiror Transaction Expenses; (h) other than, in the case of Acquiror only, (1) issuances of new Acquiror convertible notes to Sponsors or their designees/affiliates in respect of the capitalization of any Working Capital Loans in the aggregate amount of no more than $3,000,000 or (2) issuance of Equity Securities of Acquiror in connection with the Transaction Financing in accordance with the Transaction Financing Agreements, and in the case of PubCo only, issuance of new PubCo securities in connection with the Transaction Financing in accordance with the Transaction Financing Agreements, (A) issue any Equity Securities or securities exercisable for or convertible into Equity Securities, (B) grant any options, warrants or other equity-based awards with respect to a wholly owned Subsidiary of any Equity Securities not outstanding on the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv))date hereof, and or (C) for sales other than pursuant to the Transaction Documents, amend, modify or waive any of the terms or rights set forth in any Acquiror Warrant or the Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein; (i) make any change in its accounting principles or methods unless required by GAAP; (j) form any Subsidiary or commence any new line of business; (k) liquidate, dissolve, reorganize or otherwise wind-up its business and operations; (l) amend, wave or assign any material right under any material Contract to which it is a party; waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other transfersthan waivers, releases, assignments, settlements or compromises that involve only the net proceeds payment of which shall monetary damages (and not exceed the imposition of equitable relief on, or the admission of wrongdoing by, Acquiror or its Subsidiary) not in excess of $1,000,000,000 1,000,000 (individually or in the aggregate), when taken together with all such sales or otherwise pay, discharge or satisfy any Actions, Liabilities or obligations, in each case due and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (payable only before the “Sales Cap”)Share Exchange Closing; provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof;or (vm) [Intentionally Omitted;]enter into any agreement to do any action prohibited under this Section 9.4.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereofa) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from From the date of this Agreement to through the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheldCompany and its Subsidiaries shall, conditioned or delayed): (i) the Company shall not have except (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any as would constitute a violation of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxesapplicable Law, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) 6.1 of the Company Disclosure Letter Schedule, (C) as contemplated by this Agreement or pursuant (D) as consented to by Buyer in writing, operate its business in the ordinary course of business and maintain in all material respects satisfactory relationships with its material business relationships. Without limiting the generality of the foregoing, except (1) as would constitute a violation of applicable Law, (2) as set forth on Section 6.1 of the Company Benefit PlansDisclosure Schedule or (3) as consented to by Buyer in writing (which consent, in the case of clause (v) below, shall not be unreasonably conditioned, withheld, delayed or denied), the Company shall not, except as otherwise contemplated by this Agreement: (i) except as required to effect the Reverse Split, (A) change or amend the Company Charter, Company Bylaws or other organizational documents of the Company or any of its Subsidiaries, except as otherwise required by Law; or (B) authorize for issuance, issue, grant, sell, deliver, dispose of, pledge or otherwise encumber any equity securities of the Company, or any of its Subsidiaries except for shares of Company Common Stock upon the exercise of outstanding Company Options or upon the conversion of Company Preferred Stock into Company Common Stock; (ii) except for the Reverse Split, split, combine or reclassify any shares of its capital stock; declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any rights, warrants combination thereof) in respect of its capital stock; or options enter into any agreement with respect to acquire voting of any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stockCompany Capital Stock; (iii) neither make or declare any dividend or distribution to the stockholders of the Company; (iv) adopt a plan of complete or partial liquidation or dissolution, recapitalization or other reorganization; (v) hire any new officers or, except in the ordinary course of business, any new employees or consultants or terminate, other than for cause, any officer or employee; (vi) create, incur or assume any Indebtedness; assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person; or make any loans, advances or capital contributions to, or investments in, any other Person; (vii) subject any of its material property or assets to any Lien, other than any Permitted Lien; (viii) incur any capital expenditure or commitment for capital expenditures; (A) modify or terminate (excluding any expiration in accordance with its terms) any Contract of a type required to be listed on Section 4.12 of the Company nor Disclosure Schedule or providing for aggregate payments of more than $50,000, or any material insurance policy required to be listed on Section 4.17 of the Company Disclosure Schedule, outside of the ordinary course of business; (B) enter into any Contract outside of the ordinary course of business or (C) take or omit to take any action that would constitute a material violation of or material default under, or waive any material rights under, any Contract of a type required to be listed on Section 4.12 of the Company Disclosure Schedule; (x) change the nature or scope of its business being carried on as of the date of this Agreement or commence any new business not being ancillary or incidental to such business or take any action to alter its organizational or management structure; (xi) materially change its accounting methods, principles or practices, except insofar as may be required by a generally applicable change in GAAP; (xii) institute or settle any Action; (xiii) sell, assign, transfer, convey, lease, license, sublicense or otherwise dispose of (A) any Company Intellectual Property, or (B) outside of the ordinary course of business, any assets or properties of Company with a value, individually or in the aggregate, of $50,000; (A) adopt, enter into, terminate or amend any employment, severance, retention or change in control plan or Contract, any Company Benefit Plan or any collective bargaining agreement, (B) increase the compensation or fringe benefits of, or pay any bonus to, any director, officer, employee or consultant, (C) pay any benefit to any employee or consultant of the Company or any of its Subsidiaries shall have acquired except as required as of the date of this Agreement under any Company Benefit Plan, (D) grant any awards to any employee or agreed consultant of the Company or any of its Subsidiaries under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan, including the grant of equity or equity-based compensation, or the removal of existing restrictions in any benefit plans or agreements or awards made thereunder, or (E) take any action to fund or in any other way secure the payment of compensation or benefits to any employee or consultant of the Company or any of its Subsidiaries under any employee plan, agreement, Contract or arrangement or Company Benefit Plan, other than payment of premiums due or contributions owed in the ordinary course of business; (xv) acquire by merging merger or consolidating withconsolidation, or by purchasing a substantial portion of the stockmerge or consolidate, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or with any corporation, partnership, association, joint venture, limited liability company venture or other entity business organization or division thereof thereof, or acquire any business, assets or property, or make any investment in, any Person; (xvi) make any material loans or material advances of money to any Person (other than the Company), except for advances to employees or officers of the Company for expenses incurred in the ordinary course of business; (xvii) (A) make or change any material Tax election, change an annual accounting period, file any material amended Tax Return, enter into any closing agreement, settle or compromise any claim, notice, audit report or assessment in respect of Taxes or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax or (B) except as required or permitted by GAAP, make any material change to any accounting principles, methods or practices; (xviii) other than in the ordinary course of business, (B) for transactions with respect abandon, or fail to joint ventures existing on prosecute or maintain, any Company Owned Intellectual Property, or any Company Licensed Intellectual Property that the date hereof valued at less than $10,000,000 Company has the right to prosecute or (C) for transactions valued at less than $10,000,000 in the aggregate;maintain; or (ivxix) none enter into any agreement, or otherwise become obligated, to do any action prohibited under this Section 6.1(a). (b) Prior to the Closing, each of the Company Propertiesand Buyer shall exercise, Non-Controlling Properties consistent with and subject to the terms and conditions of this Agreement, control and supervision over their respective businesses. (c) From the date of this Agreement through the Closing, the Company shall not, without the prior written consent of Buyer, discharge or Identified Assets shall have been sold cause to be discharged or otherwise transferredforgiven, exceptany of the Company’s Indebtedness, (A) except for the payment of interest and principal as such amounts become due under the terms of such Indebtedness in the ordinary course of businessbusiness (and without regard to the transactions contemplated by this Agreement), and shall not amend or terminate or cause to be amended or terminated any Contracts in respect to such Indebtedness, or seek any forgiveness of any such Indebtedness. (Bd) The Company shall give prompt notice to a wholly owned Subsidiary Buyer upon becoming aware of the occurrence, or failure to occur, of any event, which occurrence or failure to occur would be reasonably likely to cause (a) (i) any representation or warranty of such party contained in this Agreement that is qualified as to materiality to be untrue or inaccurate in any respect or (ii) any other representation or warranty of such party contained in this Agreement to be untrue or inaccurate in any material respect, in each case, at any time from and after the date of this Agreement until the First Effective Time, or (b) any material failure of the Company (which Subsidiary shall or any of its Subsidiaries, as the case may be, or of any officer, director, employee or agent thereof, to comply with or satisfy any covenant, condition or agreement to be subject to the same restrictions complied with or satisfied by it under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]Agreement.

Conduct of Business. The following shall be true in all material respects as (a) Conduct of Business by the Company. During the period from the date of this Agreement to the Closing Date: Except , the Company shall carry on its business in accordance with applicable Laws and in the usual, regular and Ordinary Course in substantially the same manner as otherwise expressly provided or permittedheretofore conducted and, or contemplatedto the extent consistent therewith, use all reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers, licensors, licensees, distributors, joint venturers and others having business dealings with it, except to the extent that the failure to do so would not have a Material Adverse Effect on the Company. Without limiting the generality of the foregoing, except as contemplated by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the ClosingClosing Date, the following actions Company shall not have been taken not, without obtaining the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheldSprint, conditioned or delayed):undertake any of the following: (i) the Company shall not have (Ax) declareddeclare, set aside or paid pay any dividends on, or made make any other distributions in respect of, of any of the Company’s its capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxesstock, (By) split, combined combine or reclassified reclassify any of its capital stock or issued issue or authorized authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or (z) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other equity securities of the Company or any rights, warrants or options to acquire acquire, or convert into or exchange for, any such sharesshares or other equity securities, except for Employee Stock Options, shares repurchased or redeemed pursuant to any existing arrangements with existing employees; (ii) except as set forth in subsection (iv) hereof below, issue, deliver, sell, pledge or otherwise encumber any shares of capital stock, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible or exchangeable securities (other than (x) the Company shall not have amended issuance of new Employee Stock Options or Director Stock Options under existing Benefit Plans or Common Stock upon the Company’s exercise or conversion of Employee Stock Options or Director Stock Options, warrants or convertible notes outstanding on the date of this Agreement and in accordance with their present terms, and (y) the issuance and sale of the Convertible Preferred Stock and the Convertible Notes in accordance with the terms hereof); (iii) any amendment to the certificate of incorporation or bylaws other than to increase of the authorized shares of capital stockCompany; (iiiiv) neither the Company nor any of its Subsidiaries shall have acquired acquire or agreed agree to acquire (x) by merging or consolidating with, or by purchasing a substantial portion of the stock, stock or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof except (A) if the consideration paid by the Company in such transaction is in the ordinary course form of business, (B) for transactions with respect to joint ventures existing on an issuance of capital stock or Dilutable Securities which in the date hereof valued at less than $10,000,000 aggregate are in excess of the Issuance Percentage Limitation or (Cy) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Propertiesany assets that are material, Non-Controlling Properties individually or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereofCompany; (v) [Intentionally Omittedsell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its Intellectual Property Assets or any other properties or assets if, as a result thereof, the Company would suffer a Material Adverse Effect;] (vi) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for short- term borrowings incurred in the Ordinary Course of Business or which do not exceed $10 million in the aggregate, or (B) make any loans, advances or capital contributions to, or investments in, any other Person other than (1) pursuant to existing contractual rights and (2) non-material loans or advances to employees in the Ordinary Course of Business; (vii) make or agree to make any new capital expenditures or expenditures (other than capital expenditures which are contained in a duly approved budget of the Company as of the date hereof), which, are in excess of $5 million in the aggregate. (viii) change any accounting policy or procedure, other than any changes required by GAAP or applicable SEC accounting policy; (ix) fail to maintain its books, accounts and records in any manner other than the usual, regular and ordinary manner, on a basis consistent with prior years and in a business-like manner in accordance with sound commercial practice; (x) fail to timely file all tax returns and reports required to be filed with any Governmental Entity; or (xi) authorize any of, or commit or agree to take any of, the foregoing actions.

Conduct of Business. The following shall be true in all material respects Except (i) as contemplated or permitted by the Transaction Documents, (ii) as required by applicable Law (including for this purpose any COVID-19 Measures), (iii) as set forth on Section 7.4 of the Closing Date: Except SPAC Disclosure Letter or (iv) as otherwise expressly provided or permitted, or contemplated, consented to by this Agreement or the Plan Summary Term Sheet (including, without limitation, Company in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser writing (which consent such Purchaser agrees with respect to the matters set forth in Section 7.4(e), (f), (g) and (i) shall not be unreasonably withheld, conditioned or delayed):), during the Interim Period, SPAC and each Acquisition Entity (y) shall operate its business in the Ordinary Course and (z) shall not: (a) (i) with respect to SPAC only, seek any approval from SPAC Shareholders to change, modify or amend the Company shall not have Trust Agreement or the SPAC Charter, except as contemplated by the Transaction Proposals or (Aii) declaredchange, set aside modify or paid amend the Trust Agreement or their respective Organizational Documents, except as expressly contemplated by the Transaction Proposals; (b) (i) make or declare any dividends on, dividend or made distribution to SPAC Shareholders or make any other distributions in respect of, of any of the Company’s its capital stock (other than dividends required to retain REIT status stock, share capital or to avoid the imposition of entity level taxesEquity Securities, (Bii) split, combined combine, reclassify or reclassified otherwise amend any terms of any shares or series of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, Equity Securities or (Ciii) purchasedpurchase, redeemed repurchase, redeem or otherwise acquired (other than as set forth on Section 7.1(r)(i) acquire any of the Company Disclosure Letter or pursuant to Company Benefit Plans) any its issued and outstanding share capital, outstanding shares of its capital stock or any rightsmembership interests, warrants or options to acquire any such sharesother Equity Securities, other than a redemption of SPAC Class A Ordinary Shares made as part of SPAC Share Redemptions; (iic) the Company shall not have amended the Company’s certificate of incorporation merge, consolidate or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired amalgamate with or agreed to acquire by merging or consolidating withinto, or acquire (by purchasing a substantial portion of the stock, assets of or other ownership interests equity in, or substantial portion of assets of, or by any other manner, ) any business other Person or be acquired by any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregatePerson; (ivd) none make or change any material election in respect of material Taxes, except to comply with GAAP or applicable Law; (e) enter into, renew or amend in any material respect, any transaction or material Contract, except for material Contracts entered into in the Company PropertiesOrdinary Course; provided, Non-Controlling Properties however, that notwithstanding anything to the contrary contained in this Agreement, even if done in the Ordinary Course SPAC shall not enter into, renew or Identified Assets shall have been sold amend in any respect, any transaction or Contract involving an Affiliate of SPAC, Sponsor or any Sponsor Affiliate, except as expressly provided in the Transaction Documents; (f) incur, guarantee or otherwise transferredbecome liable for (whether directly, except, (Acontingently or otherwise) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales any Indebtedness or other transfersmaterial Liability in a principal amount or amount, the net proceeds of which shall not exceed as applicable, exceeding $1,000,000,000 2,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Propertiesthan (i) Indebtedness or other Liabilities expressly contemplated by this Agreement, Non-Controlling Properties and Identified Assets including as set out in the SPAC Disclosure Letter or (the “Sales Cap”); provided ii) Liabilities that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereofqualify as SPAC Transaction Expenses; (vg) [Intentionally Omittedmake any change in its accounting principles or methods unless required by GAAP;] (i) issue any Equity Securities, other than the issuance of Equity Securities of PubCo pursuant to the Subscription Agreements or this Agreement or (ii) grant any options, warrants or other equity-based awards; (i) settle or agree to settle any litigation, action, proceeding or investigation before any Governmental Authority or that imposes injunctive or other non-monetary relief on SPAC or an Acquisition Entity; (j) form any Subsidiary; (k) liquidate, dissolve, reorganize or otherwise wind-up the business and operations of SPAC; or (l) enter into any agreement to do any action prohibited under this Section 7.4; provided, however, that during the period from the Initial Closing through the Acquisition Closing, neither Merger Sub 1 nor PubCo shall take any action except as required or contemplated by this Agreement or the other Transaction Documents.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: (a) Except as otherwise expressly provided contemplated or permitted, or contemplated, permitted by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters as required by applicable Law or as contemplated by Article II hereofSection 6.2(a) or any order of the Bankruptcy Court in effect on the date of the AgreementCompany Disclosure Letter, during the period from the date of this Agreement to until the ClosingEffective Time, unless Parent otherwise consents, the following actions Company and its Subsidiaries shall not have been taken without (x) conduct its business in all material respects in the prior written consent ordinary course consistent with past practice, and (y) use its reasonable best efforts to preserve intact its business organization, to keep available the services of each Purchaser its officers and employees and to preserve the relationships with those Persons having business relationships with the Company or any of its Subsidiaries and (which consent such Purchaser agrees z) to continue its program of capital expenditures in accordance with the Company’s capital expenditure budget pursuant to Section 6.2(a)(iv) in the ordinary course of business. Without limiting the generality of the foregoing, and except as contemplated or permitted by this Agreement, as required by applicable Law or as contemplated by Section 6.2(a) of the Company Disclosure Letter, during the period from the date of this Agreement until the Effective Time, unless Parent otherwise consents, the Company shall, and shall not be unreasonably withheldcause its Subsidiaries to, conditioned or delayed):not: (i) the Company shall not have (A) declaredissue, set aside sell or paid grant any dividends onshares of its or its Subsidiaries’ capital stock, or made any other distributions in respect ofsecurities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any shares of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchasedany rights, redeemed warrants or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant options to Company Benefit Plans) purchase any shares of its or its Subsidiaries’ capital stock stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its or its Subsidiaries’ capital stock; (B) redeem, purchase or otherwise acquire any of its outstanding shares of its or its Subsidiaries’ capital stock, or any rights, warrants or options to acquire any such sharesshares of its or its Subsidiaries’ capital stock, except (x) pursuant to commitments in effect as of the date hereof or (y) in connection with acquisitions in connection with the forfeiture of equity awards; (C) declare, set aside for payment or pay any dividend on, or make any other distribution in respect of, any shares of its or its Subsidiaries’ capital stock; or (D) split, combine, divide, subdivide, reverse split, consolidate, reclassify, recapitalize or any other similar transaction with respect to any shares of its or its Subsidiaries’ capital stock; (ii) incur or cancel any Indebtedness for borrowed money or guarantee any such Indebtedness, other than amounts not in excess of $250,000 in the aggregate outstanding at any time; (iii) sell, lease, license, abandon or otherwise dispose of any of its properties or assets other than (A) sales, leases, licenses, abandonments or other dispositions in the ordinary course consistent with past practice, (B) pursuant to Contracts in force on the date of this Agreement and listed on Section 6.2(a)(iii) of the Company shall not have amended Disclosure Letter, (C) dispositions of obsolete or worthless assets, or (D) transfers among the Company and its Subsidiaries; (iv) make capital expenditures, in the aggregate, that are more than $250,000 in excess of the amount set forth in the Company’s certificate current plan provided in Section 4.20 of incorporation the Company Disclosure Letter; (v) make any acquisition (including by merger, consolidation, acquisition of assets, or bylaws otherwise) of any business or any corporation, partnership, limited liability company, joint venture or other business organization or division thereof or any property or assets (except in the ordinary course of business consistent with past practice and except for the acquisitions of existing Franchises by the Company set forth on Section 6.2(a)(v) of the Company Disclosure Letter) of any other Person for consideration in excess of $500,000 in the aggregate; provided that this Section 6.2(a)(v) shall not permit the Company or any of its Subsidiaries to acquire the capital stock of any other Person; (vi) mortgage, pledge, hypothecate, grant an easement with respect to, or otherwise encumber or restrict the use of any of its or its Subsidiaries’ capital stock or other equity interests or material assets (tangible or intangible), or create, assume or suffer to exist any Liens thereupon except Permitted Liens; (vii) make any loans, advances or capital contributions to, or investments in, any other Person (other than (A) the Company, (B) any wholly-owned Subsidiary, (C) in connection with the system fund administered by International Association of CEC Entertainment, Inc. in the ordinary course and in amounts consistent with past practice, or (D) to Company employees through the Company’s 401(k)); (viii) other than in the ordinary course of business and in amounts consistent with past practice, enter into (A) any intercompany loan (other than (A) with the Company, (B) with any wholly-owned Subsidiary or (C) in connection with the system fund administered by International Association of CEC Entertainment, Inc. in the ordinary course and in amounts consistent with past practice) or (B) intercompany debt arrangement (other than (A) with the Company, (B) with any wholly-owned Subsidiary or (C) in connection with the system fund administered by International Association of CEC Entertainment, Inc. in the ordinary course and in amounts consistent with past practice), or, in either case, modify or otherwise increase or decrease the balances thereof; (ix) waive, release, assign, settle or compromise any Legal Action, Transaction Claim, or other claim, liability or obligation, whether absolute, accrued, asserted or unasserted, contingent or otherwise against the Company or any of its Subsidiaries or any of their respective directors or officers, other than in the case of Legal Actions or other claims, liabilities or obligations either (A) for an amount not greater than $250,000 individually (including any single or aggregated claims arising out of the same or similar facts, events or circumstances) or $500,000 in the aggregate (determined, in each case, net of insurance proceeds) or (B) if the loss resulting from such waiver, release, assignment settlement or compromise is reimbursed to the Company or any of its Subsidiaries by an insurance policy, in each case only without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries or any of its officers or directors; (x) renew or enter into any non-compete, exclusivity, non-solicitation or similar agreement that would restrict or limit, the operations of the Company and its Affiliates or the Surviving Corporation or its Affiliates after the Effective Time; (xi) Except as required by applicable Law or the Transactions, enter into, amend, terminate (other than terminations in accordance with their terms) or waive any material rights or obligations under, any Material Contract, Franchise Agreement or Company Lease; (xii) (A) other than as set forth on Section 6.2(a)(xii) of the Company Disclosure Letter, increase the authorized compensation or benefits payable or to become payable to any of its directors, officers, employees or individual independent contractors, (B) grant any severance or termination pay to, or enter into any severance agreement with, any of its directors, officers, employees or individual independent contractors, other than payments of severance benefits pursuant to any Company Plan in effect as of the date hereof in the ordinary course of business, consistent with past practice, (C) enter into any employment, retention or change of control agreement (including, for the avoidance of doubt, any offer letter) with any of its directors, officers or employees, other than employment agreements terminable on less than thirty (30) days’ notice without payment of severance benefits or penalty or similar payments, (D) amend or terminate any, or enter into or adopt any new, Company Plan (or other plan, agreement or arrangement that would be a Company Plan if in effect on the date hereof) for the benefit of any current or former directors, officers, employees or independent contractors of the Company or any of its Subsidiaries, (E) take any action to fund any trust or similar funding vehicle in advance of the payment of compensation or benefits under any Company Plan (except for payment of insurance premiums, contributions to tax-qualified plans, or payment of employment Taxes, in each case as required under applicable Law or the applicable Company Plan), (F) adopt, enter into, amend or terminate any collective bargaining agreement or other similar arrangement relating to union or organized employees, (G) terminate the employment of any executive officer of the Company, other than for cause, or (H) hire any employee or individual independent contractor having a total annual compensation (including salary, bonus and benefits) in excess of $150,000, in each case, other than as required pursuant to applicable Law or the terms of any Company Plan in effect on the date of this Agreement; (xiii) make or change any material election concerning Taxes, file any material amended Tax Return, change any material method of Tax accounting, or settle or compromise any audit or proceeding relating to a material amount of Taxes; (xiv) 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; (xv) amend the Company Charter Documents or any charters, bylaws or similar organizational or governing documents of any of the Company’s Subsidiaries; (xvi) enter any new line of business outside of its existing business; (xvii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any Company Affiliate Transaction; (xviii) enter into any agreement or understanding or arrangement with respect to the voting or registration of the shares of the Company’s or its Subsidiaries’ capital stock; (iiixix) neither fail to use commercially reasonable efforts to (A) keep in force material insurance policies and (B) in the event of a termination, cancellation or lapse of any material insurance policies, obtain replacement policies providing insurance coverage with respect to the material assets, operations and activities of the Company nor and its Subsidiaries as is currently in effect; (xx) merge or consolidate the Company or any of its Subsidiaries with any Person; (xxi) adopt a plan or agreement of complete or partial liquidation or dissolution; (xxii) other than as permitted by Section 6.3, take any action (or omit to take any action) if such action (or omission) could reasonably be expected to result in any of the Offer Conditions or any conditions to the Merger set forth in Article VII not being satisfied; or (xxiii) agree in writing to take any of the foregoing actions. (b) Parent and the Company agree that, during the period from the date of this Agreement until the Effective Time, Parent and the Company shall have acquired not, and shall not permit any of their Subsidiaries to, take, or agreed agree or commit to take, any action that could reasonably be expected to (i) impose any material delay in the obtaining of, or significantly increase the risk of not obtaining, any authorizations, consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the Transactions or the expiration or termination of any applicable waiting period, (ii) significantly increase the risk of any Governmental Authority entering an order or Restraint prohibiting the consummation of the Transactions or (iii) otherwise materially delay the consummation of the Transactions (each, a “Delay”). Without limiting the generality of the foregoing, Parent agrees that, during the period from the date of this Agreement until the Effective Time, Parent shall not, and shall not permit any of its Subsidiaries to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, assets of or other ownership interests equity in, or substantial portion of assets of, or by any other manner, any business Person or any corporationportion thereof, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferredacquire or agree to acquire any assets or rights, exceptif the entering into of a definitive agreement relating to or the consummation of such acquisition, (A) merger or consolidation would reasonably be expected to result in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]Delay.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): (i) the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes), (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted] (vi) none of the Company or any of its Subsidiaries shall have issued, delivered, granted, sold or disposed of any Equity Securities (other than (A) issuances of shares of Common Stock issued pursuant to, and in accordance with, Section 7.1(u), but subject to Section 7.1(q), (B) pursuant to the Equity Exchange, (C) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans, (D) as set forth on Section 7.1(u) of the Company Disclosure Letter), or (E) the issuance of shares to existing holders of Common Stock and the Backstop Investors, in each case, pursuant to Section 6.9);] (vii) none of the Company Properties or Identified Assets shall have been mortgaged, or pledged, nor shall the owner or lessee thereof have granted a lien, mortgage, pledge, security interest, charge, claim or other Encumbrance relating to debt obligations of any kind or nature on, or otherwise encumbered, any Company Property or Identified Assets except in the ordinary course of business consistent with past practice, other than encumbrances of Company Properties or Identified Assets of Debtors in connection with (A) a restructuring of existing indebtedness for borrowed money related to any such Company Property or Identified Asset with the existing lender(s) thereof or (B) a refinancing of existing indebtedness for borrowed money related to any Company Property or Identified Asset in an amount not to exceed $300,000,000 (the “Refinance Cap”), provided that (x) the Refinance Cap shall not apply to a refinancing of the existing first lien indebtedness secured by the Fashion Show Mall, (y) in the event that a refinancing is secured by mortgages, deeds of trust, deeds to secure debt or indemnity deeds of trust encumbering multiple Company Properties and Identified Assets, the proceeds of such refinancing shall not exceed an amount equal to the Refinance Cap multiplied by the number of Company Properties and Identified Assets so encumbered, and (z) in connection with refinancing the indebtedness of a Company Property or Identified Asset owned by a Joint Venture, the Refinance Cap shall apply with respect to the aggregate share of such indebtedness which is allocable to, or guaranteed by (but without duplication), the Company and/or its Subsidiaries; (viii) none of the Company or any of its Subsidiaries shall have undertaken any capital expenditure that is out of the ordinary course of business consistent with past practice and material to the Company and its Subsidiaries taken as a whole, except as contemplated in the Company’s business plan for fiscal year 2010 adopted by the board of directors of the Company prior to the date hereof; or (ix) the Company shall not have changed any of its methods, principles or practices of financial accounting in effect, other than as required by GAAP or regulatory guidelines (and except to implement purchase accounting and/or “fresh start” accounting if the Company elects to do so).

Conduct of Business. The following shall be true in all material respects as Since May 10, 2007, the business and operations of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement Company has been conducted in the Ordinary Course of Business and there has not been any Material Adverse Change in the operation of the business or the Plan Summary Term Sheet performance or financial condition of the Company. Without limiting the generality of the foregoing, since May 10, 2007, and except as set forth on Schedule 4.11, the Company has not: (a) borrowed any amount or incurred or become subject to any liability in excess of $10,000.00, except (i) current liabilities incurred in the Ordinary Course of Business, (ii) liabilities under Contracts entered into in the Ordinary Course of Business and (iii) borrowings under lines of credit existing on such date; (b) sold, assigned, licensed, leased or transferred (including, without limitation, transfers with employees, Affiliates, the members of the Seller Group or their respective Family Affiliates) any assets or properties except in connection the Ordinary Course of Business, or cancelled any debts or claims; (c) waived any rights of value or suffered any losses in the Ordinary Course of Business; (d) declared or paid any dividends or other distributions with implementing respect to any equity interests of the matters Company or redeemed or purchased, directly or indirectly, any equity interests of the Company; (e) taken any other action or entered into any other transaction (including any transactions with employees, Affiliates, members of the Seller Group or their respective Family Affiliates) other than in the Ordinary Course of Business or the transactions contemplated by Article II hereofthis Agreement and the Ancillary Agreements; (f) (i) increased the salary, wages or other compensation rates of any order officer, employee, director or consultant except in the Ordinary Course of Business, (ii) failed to pay profit-sharing bonuses and any other regularly-paid bonuses to any officer, employee. director or consultant in a manner that is not consistent with the Ordinary Course of Business, (iii) made or granted any increase in any Employee Plan, or amended or terminated any existing Employee Plan, or adopted any new Employee Plan or (iv) made any commitment or incurred any liability to any labor organization; (g) made any capital expenditures or commitments therefor in excess of $10,000.00; (h) made any change in accounting or Tax principles, practices or policies from those utilized in the preparation of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):Financial Statements; (i) the Company shall not have (A) declared, set aside made any write-off or paid any dividends on, write-down of or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required determination to retain REIT status write-off or to avoid the imposition of entity level taxes, (B) split, combined or reclassified write-down any of its capital stock assets and properties, except in the Ordinary Course of Business. (j) made any change in its general pricing practices or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock policies or any rights, warrants change in its credit or options to acquire any such sharesallowance practices or policies; (iik) entered into any amendment, modification, termination (partial or complete) or granted any waiver under or given any consent with respect to any Contract that is required to be disclosed in the Company shall not have amended the Company’s certificate of incorporation or bylaws other than schedules to increase the authorized shares of capital stockthis Agreement; (iiil) neither the Company nor commenced or terminated any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course line of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate;; or (ivm) none of the Company Propertiesreceived written notice from any customer or supplier that such customer or supplier has ceased, Non-Controlling Properties may cease or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) will cease to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together do business with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]it.

Conduct of Business. The following shall be true in all material respects as of (a) Prior to the Closing Date: Except Closing, and except as otherwise expressly provided or permitted, or contemplated, contemplated by this Agreement or consented to or approved by Buyer, Seller shall cause the Plan Summary Term Sheet (includingCompany to operate the business only in the Ordinary Course of Business and use commercially reasonable efforts to preserve the properties, without limitation, in connection business and relationships with implementing the matters contemplated by Article II hereof) or any order suppliers and customers of the Bankruptcy Court in effect on Company and shall cause the date Company not to undertake any of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):following: (i) the Company shall not have (A) declaredsell, set aside lease, transfer or paid assign any dividends on, or made any other distributions in respect of, any of the Company’s capital stock material assets (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (Binventory) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) in the Ordinary Course of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such sharesBusiness; (ii) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized repurchase, redeem or otherwise acquire any outstanding shares of the capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired stock or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stockother securities of, or other ownership interests in, the Company; (iii) transfer, issue, sell or substantial portion dispose of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company Equity Interests or other entity securities of the Company or division thereof except (A) in grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the ordinary course capital stock or other securities of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregateCompany; (iv) none of the Company Propertiescreate an Encumbrance, Non-Controlling Properties other than Permitted Exceptions, on any material assets, or Identified Assets shall have been sold or otherwise transferred, except, (A) incur any Indebtedness in each case except in the ordinary course Ordinary Course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereofBusiness; (v) [Intentionally Omittedpermit the Company to enter into any transaction or to enter into, modify or renew any Contract which is not in the Ordinary Course of Business;] (vi) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Company to compete with or conduct any business or line of business in any geographic area except in the Ordinary Course of Business; (vii) enter into, terminate, materially amend, restate, materially supplement or waive any material rights under any (A) Material Contract, Personal Property Lease or Intellectual Property License (or any Contract that would be categorized as any of the foregoing if in existence on the date hereof) or (B) Permit, in each case other than in the Ordinary Course of Business; (viii) except for increases consistent with past practices or as may be required by any Contracts existing as of the date hereof, increase the rate of compensation or the benefits payable to any employee at an average of more than 10%; (ix) other than in the Ordinary Course of Business or as required by law including, with respect to any Benefit Plan, as a condition of continued qualification, adopt, amend, modify or terminate any bonus, profit-sharing, incentive, stock option, severance, or other plan, contract or commitment for the benefit of any of its directors, officers or employees (or taken any such action with respect to any Employee Benefit Plan), or enter into any employment agreement or make any material change in employment terms for any of employees of the Company increasing such benefits at an average of more than 10%; (x) make any new commitment or increase any previous commitment for capital expenditures in an amount exceeding $150,000 per any such capital expenditure, and $300,000 in the aggregate; provided that any commitment identified in Section 5.1(a) of the Company Disclosure Schedule shall not require the consent or approval of Buyer; (xi) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xii) adopt or propose any amendment to the Charter Documents of the Company; (xiii) acquire any assets other than in the Ordinary Course of Business or as provided in Section 5.1(a)(x) hereof; (xiv) make any changes in its accounting methods, principles or practices other than as required by GAAP; (xv) make any Tax election, change its method of Tax accounting or settle any claim relating to Taxes other than as required by Tax laws; (xvi) agree to do anything prohibited by this Section 5.1 or anything which would make any of the representations and warranties of Seller in this Agreement untrue or incorrect in any material respect; or (xvii) enter into any Contract, commitment or arrangement with respect to any of the foregoing. (b) Nothing in this Agreement shall be construed to limit Seller and the Company’s discretion to operate the business of the Company in the Ordinary Course of Business, or shall give Buyer any ownership rights to Shares, before the Closing Date. (c) As of the Closing, the Company shall secure the Financial Releases. (d) Buyer acknowledges that notwithstanding anything to the contrary, the Company may transfer, by way of a dividend or otherwise, cash, cash equivalents, marketable securities and other financial instruments to Seller or its Affiliates prior to Closing.

Conduct of Business. The following shall be true in all material respects as of First Security and the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, Bank agree that during the period from the date of this Agreement to the ClosingEffective Time (unless AFB shall otherwise agree in writing and except as otherwise contemplated by this Agreement), First Security and the following actions Bank shall conduct, and shall cause their Subsidiaries to conduct, their operations according to their ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, seek to preserve intact their current business organiza-tion, keep available the service of their current directors, officers and employees and preserve their relationships with customers, suppliers and others having business dealings with them to the end that goodwill and ongoing business shall not have been taken be impaired in any material aspect at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise permitted in this Agreement, prior to the Effective Time, First Security and the Bank shall not, and shall cause the First Security Subsidiaries not to, without the prior written consent of each Purchaser AFB: (which consent such Purchaser agrees shall not be unreasonably withhelda) Issue, conditioned sell, grant, dispose of, pledge or delayed): otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (i) any additional shares of capital stock of any class of First Security of the Company shall not have First Security Subsidiaries (A) declared, set aside or paid any dividends onincluding shares of First Security Common Stock), or made any securi-ties or rights convertible into, exchangeable for, or evidencing the right to subscribe for any such shares of capital stock, or any rights, warrants, options, calls, commit-ments or any other distributions in respect of, agreements of any character to purchase or acquire any such shares of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued any securities or authorized rights convertible into, exchangeable for, or evidencing the issuance right to subscribe for, any shares of such capital stock, or any other ownership interest (including, without limitation, any phantom interest), or (ii) any other securities in respect of, in lieu of of, or in substitution substitu-tion for, shares of First Security Common Stock outstanding on the date hereof, except with respect to the options outstanding on the date hereof that have been Disclosed; (b) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of First Security Common Stock; (c) split, combine, subdivide or reclassify any shares of First Security Common Stock or declare, set aside for its capital payment or pay any dividend, or make any other actual, constructive or deemed distribution, whether in cash, stock, property or (C) purchasedotherwise, redeemed in respect of any shares of First Security Common Stock or otherwise acquired make any payments to shareholders in their capacity as such; (d) adopt a plan of complete or partial liquida-tion, dissolution, merger, consolidation, restruc-turing, recapital-ization or other reorganization of First Security or the Bank (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter Merger or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such sharesthe Bank Merger); (iie) adopt any amendments to the Company shall not have amended the Company’s certificate articles of incorporation or bylaws other than to increase of First Security or the authorized shares of capital stockBank; (iiif) neither the Company nor make any of its Subsidiaries shall have acquired acquisition or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion disposi-tion of assets ofor securi-ties, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions business consistent with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregatepast practices; (ivg) none of the Company Propertiesincur any indebtedness for borrowed money or guarantee any such indebtedness or make any loans, Nonadvances or capital contribu-Controlling Properties tions to, or Identified Assets shall have been sold investments in, any other person or otherwise transferredentity, except, (A) other than in the ordinary course of businessbanking consistent with safe and sound banking practices; it being understood and agreed that the incurrence of indebtedness in the ordinary course of a commercial banking business shall include the creation of deposit liabilities, (B) to a wholly owned Subsidiary purchas-es of federal funds and demand and overnight Federal Home Loan Bank Funds, sales of certificates of deposit and entering into repurchase agreements, provided it is within applicable directives required by law or by the Company (which Subsidiary shall be subject Federal Reserve Board, the FDIC or the KXXX to the same restrictions under this subsection (iv)), and (C) for sales end that such is not an unsafe or other transfersunsound banking practice according to the Federal Reserve Board, the net proceeds of which shall not exceed $1,000,000,000 in FDIC or the aggregateKXXX, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent applicable thereto; (h) offer any new deposit or loan product or service or, except as may be required to comply with applicable law, change its lending, investment, liability management, loan loss provision, loan loss charge-off or other material banking policies; (i) grant any increase in the same shall compensation of any of the directors, officers or employees of First Security or the Bank; (j) pay or agree to pay any pension, retire-ment allowance, severance or other employee benefit not required or contemplated by any of the existing Employee Benefit Plans or any agreements or arrangements as in effect on the date hereof to any such director, officer or employee, whether past or present, except as may be required by law or this Agreement; (k) enter into any new or amend or extend any existing employment or severance or termination agreement with any director, officer or employee; (l) except as may be required to comply with applicable law or to maintain the tax-qualified status of any such plan, become obligated under any new benefit plan or amend any existing benefit plan in existence on the date hereof if such amendment would have been consummated in accordance with the express terms and conditions effect of materially enhancing any benefits thereun-der; (m) make any capital expenditures or commit-ments for any capital expenditures other than capital expenditures or commitments for any capital expenditures set forth in Article II hereofthe First Security Disclosure Memorandum; (vn) [Intentionally Omittedmake any material changes in its customary methods of marketing;] (o) take, or agree to commit to take, any action that would make any representation or warranty of First Security or the Bank contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time; (p) change its method of accounting in effect at December 31, 2004, except as required by changes in GAAP as concurred in by First Security’s independent auditors, or change its fiscal year; (q) take any action that would, or reasonably might be expected to, adversely affect the ability of First Security, the Bank or AFB to obtain any of the regulatory approv-als set forth in Section 6.01(b) without imposition of a condition or restriction of the type referred to in Section 7.1(d); or (r) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from From the date of this Agreement to through the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser except as set forth on Schedule 6.1, as contemplated by this Agreement, or as consented to by Buyer in writing (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):), (a) Sellers shall cause each of the Companies to (x) operate its business in the ordinary course and (y) use Reasonable Efforts to preserve intact its business and its relationship with customers, suppliers and others having business relationships with a Company and (b) Sellers shall not permit any of the Companies to: (i) the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of amend its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such sharesOrganizational Documents; (ii) the Company shall not have amended the Company’s certificate of incorporation liquidate, dissolve, recapitalize or bylaws other than to increase the authorized shares of capital stockotherwise wind up its business; (iii) neither change its accounting methods, policies or practices, except as required by GAAP or applicable Laws; (iv) sell, assign, transfer, lease or otherwise dispose of any assets except in the Company nor ordinary course of business or pursuant to the terms of a Material Contract; (v) make any capital expenditure in excess of its Subsidiaries shall have acquired $1,000,000 other than capital expenditures reflected on Schedule 6.1(v) and other than reasonable capital expenditures in connection with any emergency or agreed to acquire by merging force majeure events affecting a Company; (vi) merge or consolidating consolidate with, or by purchasing a substantial portion purchase substantially all of the stockassets or business of, or other ownership equity interests in, or substantial portion make an investment in any Person (other than in a Company or extensions of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) credit to customers in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate); (ivvii) none incur any Indebtedness for Borrowed Money or issue or sell any equity interests, notes, bonds or other securities of the a Company Properties, Non-Controlling Properties (except for intercompany loans from or Identified Assets shall have been sold to Sellers or otherwise transferred, except, (A) their Affiliates in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfersany option, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect warrant or right to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereofacquire same; (vviii) [Intentionally Omittedadopt any profit sharing, compensation, savings, insurance, pension, retirement or other benefit plan or otherwise hire any employees;] (ix) enter into any Contract, except for Contracts entered into by a Company in the ordinary course of business; (x) create or assume any Lien, other than a Permitted Lien; (xi) terminate or close any facility, business or operation of any Company except in the ordinary course of business; or (xii) agree, whether in writing or otherwise, to do any of the foregoing.

Conduct of Business. The following shall be true in all material respects as business of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees Company and its Subsidiaries shall not be unreasonably withheldconducted in violation of any law, conditioned ordinance or delayed):regulation of any Governmental Entity, except where such violations would not reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect. (i) Except as expressly set forth below, the Company shall not have Buyer covenants that from and after the date hereof through and ending when no Convertible Debentures remain outstanding (A) declaredthe “Restricted Period”), set aside no Buyer or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock officers, or issued any entity managed or authorized controlled by the issuance Buyer (collectively, the “Restricted Persons” and each of the foregoing is referred to herein as a “Restricted Person”) shall, directly or indirectly, engage in any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) put equivalent position or any hedging transaction which establishes a net short position with respect to any securities of the Company (including the Common Stock), with respect to each of clauses (i) and (ii) hereof, either for its own principal account or for the principal account of any other securities in respect ofRestricted Person. Notwithstanding the foregoing, in lieu of or in substitution for its capital stock, it is expressly understood and agreed that nothing contained herein shall (without implication that the contrary would otherwise be true) prohibit any Restricted Person during the Restricted Period from: (1) selling “long” (as defined under Rule 200 promulgated under Regulation SHO) Common Stock; or (C2) purchasedselling a number of shares of Common Stock equal to the number of Underlying Shares that such Restricted Person is entitled to receive, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of but has not yet received from the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, excepttransfer agent, (A) upon the completion of a pending conversion of the Convertible Debentures for which a valid Conversion Notice (as defined in the ordinary course of business, (BConvertible Debentures) has been submitted to a wholly owned Subsidiary the Company pursuant to Section 4(b) of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]Convertible Debentures.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): (i) the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omittedintentionally omitted;] (vi) none of the Company or any of its Subsidiaries shall have issued, delivered, granted, sold or disposed of any Equity Securities (other than (A) issuances of shares of Common Stock issued pursuant to and in accordance with Section 7.1(u), but subject to Section 7.1(q) (B) pursuant to the Equity Exchange, (C) the issuance of shares pursuant to the exercise of employee stock options issued pursuant to the Company Option Plans or (D) as set forth on Section 7.1(u) of the Company Disclosure Letter); (vii) none of the Company Properties or Identified Assets shall have been mortgaged, or pledged, nor shall the owner or lessee thereof have granted a lien, mortgage, pledge, security interest, charge, claim or other Encumbrance relating to debt obligations of any kind or nature on, or otherwise encumbered, any Company Property or Identified Assets except in the ordinary course of business consistent with past practice, other than encumbrances of Company Properties or Identified Assets of Debtors in connection with (A) a restructuring of existing indebtedness for borrowed money related to any such Company Property or Identified Asset with the existing lender(s) thereof or (B) a refinancing of existing indebtedness for borrowed money related to any Company Property or Identified Asset in an amount not to exceed $300,000,000 (the “Refinance Cap”), provided that (x) the Refinance Cap shall not apply to a refinancing of the existing first lien indebtedness secured by the Fashion Show Mall, (y) in the event that a refinancing is secured by mortgages, deeds of trust, deeds to secure debt or indemnity deeds of trust encumbering multiple Company Properties and Identified Assets, the proceeds of such refinancing shall not exceed an amount equal to the Refinance Cap multiplied by the number of Company Properties and Identified Assets so encumbered, and (z) in connection with refinancing the indebtedness of a Company Property or Identified Asset owned by a Joint Venture, the Refinance Cap shall apply with respect to the aggregate share of such indebtedness which is allocable to, or guaranteed by (but without duplication), the Company and/or its Subsidiaries; (viii) none of the Company or any of its Subsidiaries shall have undertaken any capital expenditure that is out of the ordinary course of business consistent with past practice and material to the Company and its Subsidiaries taken as a whole, except as contemplated in the Company’s business plan for fiscal year 2010 adopted by the board of directors of the Company prior to the date hereof; or (ix) the Company shall not have changed any of its methods, principles or practices of financial accounting in effect, other than as required by GAAP or regulatory guidelines (and except to implement purchase accounting and/or “fresh start” accounting if the Company elects to do so).

Conduct of Business. The following (a) Except either (w) with the written consent of Purchaser (which consent shall not be true unreasonably withheld, delayed or conditioned in the case of clauses (viii), (ix), (xi), (xii), (xiv) or (xvi) below), (x) as set forth on Schedule 5.2, (y) as otherwise contemplated or expressly permitted by the terms of this Agreement, or (z) as required by Law, from the date hereof to the earlier of the Closing and termination of this Agreement, the Company shall, and shall cause each of its Subsidiaries to, conduct its business in the ordinary course consistent in all material respects with past practices and shall not take any of the following actions: (i) amend its Organizational Documents; (ii) issue or agree to issue any of its Equity Interests or issue or enter into or agree to issue any Equity Interests or sell transfer or otherwise dispose of or encumber any shares of Equity Interests other than the issuance of shares of Common Stock upon exercise of Options outstanding at the date hereof; (iii) except for borrowings in the ordinary course of business under the credit facilities listed on Schedule 5.2(a)(iii) of this Agreement (but in no event in excess of $10,000,000 outstanding having an interest rate period that extends beyond the Closing Date and that subjects the Company to breakage costs) , (x) create, incur or assume any long-term or short-term Indebtedness (including obligations in respect of capital leases), (y) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any material obligations of any other Person or (z) make any loans, advances or capital contributions to or investments in any Person other than loans, advances or capital contributions by the Company to any wholly-owned Subsidiary, advances by Subsidiaries to their respective parents and loans to wholly-owned Subsidiaries; (iv) (A) grant any increase in the compensation of employees of the Company, except for increases (x) in the compensation of employees other than executive officers or directors in the ordinary course of business consistent with past practices (y) in the compensation of any employee (including executive officers or directors) required under employment agreements in effect on December 31, 2006 or (z) as required by applicable Law from time to time in effect or by any Employee Benefit Plan, (B) enter into any new employment, severance, consulting or other compensation agreement with any existing director, officer or key employee, (C) commit to any new Employee Benefit Plan, fund or similar arrangement, or amend in any material respect any existing plans, funds or similar arrangements, except as such amendment may be required by Law; (v) enter into any Contract with any Affiliate of the Company or its Subsidiaries other than any Contract with any wholly-owned Subsidiary or between any wholly-owned Subsidiary entered into in the ordinary course of business; (vi) declare, pay or set aside any dividend or make any distribution with respect to, or splitting, combining, redeeming, reclassifying, purchasing or otherwise acquiring, directly or indirectly, any Equity Interests of the Company or any Subsidiary other than dividends or distribution from a wholly-owned Subsidiary to its parent corporation, or otherwise make any change in the capital structure of the Company or any Subsidiary; (vii) convene any regular or special meeting (or any adjournment thereof) of the stockholders of the Company other than the Special Meeting and other than one annual meeting to elect directors and take other actions in the ordinary course or as required by Law; (viii) amend or modify, or terminate any Contract described in Section 3.12 other than in the ordinary course of business; (ix) enter into any (A) lease, (B) Contract that, if entered into prior to the date hereof, would fall within the definitions set forth in Sections 3.12(a)(ii), (iii), (iv), (v), (vi), (viii) or (ix) (whether or not in the ordinary course of business), or (C) other Contract other than in the ordinary course of business; (x) acquire any business or Person, whether by merger, consolidation, purchase of assets or Equity Interests or by any other manner, in a single transaction or a series of related transactions; (xi) make any capital expenditure or commitment therefor, in excess of $250,000 individually or $1,000,000 in the aggregate other than, in the case of a catastrophic event, up to the amount of insurance proceeds received by the Company that are necessary to rebuild or repair the damaged assets; (xii) write off as uncollectible any notes, accounts receivable or inventory, other than write-offs in the ordinary course of business consistent with past practice and charged to applicable reserves or which are in accordance with GAAP, which individually and in the aggregate are not material to the Company; (xiii) cancel or waive any claims of rights of substantial value; (xiv) compromise, settle or agree to compromise or settle any claims, suits, action, Proceedings or investigations other than compromises, settlements or agreements in the ordinary course of business and consistent with past practice or, whether or not in the ordinary course of business or consistent with past practice, involve the payment of monetary damages not to exceed $2,500,000, individually, or $5,000,000, in the aggregate, in each case without the imposition of equitable relief on, or the admission of wrongdoing by, the Company or any of its Subsidiaries or any of its officers or directors; (xv) intentionally take any action, engage in any transaction, or enter into any Contract, that would cause any of the representations set forth in ARTICLE III to be materially inaccurate or untrue as of the Closing Date: Except as otherwise expressly provided Closing; (xvi) plan, announce, implement or permittedeffect any reduction in force, lay-off, early retirement program, severance program or contemplated, by this Agreement other program or effort concerning the Plan Summary Term Sheet termination of employment of employees of the Company or any of its Subsidiaries (including, without limitationother than routine employee terminations in the ordinary course of business that, in connection with implementing any event, do not constitute a reduction in force, lay-off, early retirement, severance or other general program); (xvii) make any material increase in staffing levels at the matters contemplated by Article II hereof) Company or any order of its Subsidiaries other than in the ordinary course of business consistent with past practices; (xviii) enter into any Contract (A) in respect of a particular aircraft program if such program, on the whole, is reasonably expected by the Company (such expectation to be determined in a manner consistent with the Company’s historical practices) to result in a loss to the Company and its Subsidiaries (or, after the Merger, Parent and its Subsidiaries); in each case without Purchaser’s prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned unless, but only to the extent that, withholding such consent would be a violation of applicable Law or (B) other than with respect to Contracts covered by clause (A) hereof, that is reasonably expected by the Company to result in revenue to or expenditures by the Company and its Subsidiaries (or, after the Merger, Parent and its Subsidiaries) greater than $25,000,000; or (xix) agree, whether in writing or otherwise, to do any of the Bankruptcy Court in effect on the date of the Agreement, during foregoing. (b) During the period from the date of this Agreement to the ClosingClosing Date, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheldsubject to Section 5.1, conditioned or delayed): (i) the Company shall not have (A) declared, set aside confer on a regular basis with one or paid any dividends on, or made any other distributions in respect of, any more designated representatives of Purchaser to report material operational matters and to report the Company’s capital stock (other than dividends required to retain REIT general status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares;ongoing operations. (iic) the The Company shall not have amended the Company’s certificate of incorporation or bylaws other than use its commercially reasonable efforts to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions keep all insurance policies currently maintained with respect to joint ventures existing the Company and its assets and properties, or suitable replacements or renewals, in full force and effect through the close of business on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]Closing Date.

Conduct of Business. The following 10.1.1 During the Interim Period, Euronav shall be true conduct its business (considered as a whole and in all material respects as of respects) in the Closing Date: Except as otherwise expressly provided Ordinary Course and materially in accordance with Applicable Law. Specifically, Euronav shall (and shall ensure that all its Subsidiaries shall), other than actions made or permitted, or contemplated, by taken in accordance with this Agreement or in order to give effect to the Plan Summary Term Sheet (including, without limitation, in connection Combination or as required to comply with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the AgreementApplicable Law, during the period from Interim Period: (a) not enter into any material contracts or agree to amend any existing contracts which are outside the date Ordinary Course; (b) not undertake any material asset acquisitions or disposals (including by way of this Agreement sale or acquisitions of shares in a Subsidiary) which are outside the Ordinary Course, or enter into binding agreements for such material acquisitions or disposals outside the Ordinary Course; (c) not create any Encumbrance over any of its assets other than in the Ordinary Course; (d) not enter into any new material partnership agreement, joint venture agreement or other alliance of any nature whatsoever; (e) not enter into any transaction with any of its Connected Persons, where such transaction represents a value in excess of USD 5,000,000 or cannot be terminated within 6 months after the Tender Offer Completion Date; (f) not make, or not propose or pass any resolution to: (i) change its share capital or number of shares; (ii) issue any financial instrument or grant any other rights giving a right to subscribe for or purchase shares; or (iii) reduce or increase the Closingnumber of shares held in treasury by Euronav other than for the exercise of outstanding share incentive plans; (g) not forgive, settle or agree to defer the following actions shall not have been taken without settlement of any claims or legal proceedings individually in excess of USD 5,000,000 and USD 10,000,000 in aggregate; in each case except with the prior written consent of each Purchaser (which consent such Purchaser agrees shall Frontline, not to be unreasonably withheld, conditioned delayed or delayed): (i) conditioned. To the Company shall extent Frontline has not have (A) declared, set aside provided or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of withheld its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on consent within ten Business Days following the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company PropertiesEuronav’s request thereto, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary Frontline shall be subject deemed to have provided its prior written consent for the same restrictions under purposes of this subsection (iv))Clause. 10.1.2 Euronav shall promptly notify Frontline if it becomes aware that any act, and (C) for sales matter or other transfers, the net proceeds of which shall not exceed $1,000,000,000 thing that is inconsistent with its obligations in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]Clause 10.1.1 above has occurred.

Conduct of Business. The following shall be true (a) Except for matters set forth in all material respects as Section 4.01(a) of the Closing Date: Except as Company Disclosure Letter or otherwise expressly provided or permitted, or contemplated, permitted by this Agreement or the Plan Summary Term Sheet and subject to the effect of the Chapter 11 Cases on the Debtors (includingother than those matters which have been proposed, without limitationinitiated or supported in any manner by the Company after the date hereof), from the date hereof to the Closing Date (or such earlier date in connection the event this Agreement is terminated in accordance with implementing its terms), the matters contemplated by Article II hereof) Company will, and will cause each Company Subsidiary to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted, and use commercially reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company or any order Company Subsidiary to the end that its goodwill and ongoing business will be unimpaired at the Closing. In addition, and without limiting the generality of the Bankruptcy Court foregoing, except for matters set forth in effect on the date Section 4.01(a) of the AgreementCompany Disclosure Letter or otherwise expressly permitted or required by this Agreement or the Plan, during the period from the date of this Agreement to the ClosingClosing Date (unless this Agreement is earlier terminated or in accordance with the provisions hereof), the Company will not, and will not permit any Company Subsidiary to, do any of the following actions shall not have been taken without the prior written consent of each Purchaser Investor (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned delayed or delayedconditioned): (i) the Company shall not have amend its certificate of incorporation, by-laws or other comparable charter or organizational documents, other than in accordance with this Agreement; (Aii) declareddeclare, set aside or paid pay any dividends on, dividend or made make any other distributions distribution to its equity holders, whether or not upon or in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stockequity interest; (iii) neither the Company nor redeem or otherwise acquire any shares of its Subsidiaries shall have acquired capital stock or agreed other equity interest or issue, deliver, sell or grant any capital stock or other equity interest; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial an equity interest in or portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof or (B) any other assets except, with respect to this clause (B), purchases in the ordinary course of business consistent with past practice; (v) except as required under applicable Law or the terms of any Company Benefit Plan or Company Benefit Agreement in effect on the date of this Agreement, (A) grant to any Employee any loan or increase in any kind of compensation, benefits, perquisites, fringe benefits or any bonus or award, except for grants or increases in any of the foregoing that are made in the ordinary course of business consistent with past practice, (B) grant to any Employee any severance, retention, change in control or termination pay or benefits, or pay any bonus to any Employee, (C) enter into any employment, change in control, loan, retention, consulting, indemnification, severance, termination or similar agreement with any Employee, (D) take any action to secure the payment of compensation or benefits under any Company Benefit Plan or Company Benefit Agreement except in the ordinary course of business consistent with past practice, (E) establish, adopt, enter into, terminate or amend any collective bargaining agreement or other labor union Contract, Company Benefit Plan or Company Benefit Agreement, (F) pay or provide to any Employee any benefit not provided for under a Company Benefit Plan or Company Benefit Agreement as in effect on the date of this Agreement, other than the payment of base compensation in the ordinary course of business consistent with past practice, (G) grant any incentive awards under any Company Benefit Agreement or Company Benefit Plan (including in respect of “phantom” stock, “phantom” stock options, stock appreciation rights, “phantom” stock rights, deferred stock units, performance stock units or other stock based or stock related awards or the removal or modification of any restrictions in any Company Benefit Agreement or Company Benefit Plan or awards made thereunder) or (H) take any action to accelerate any rights or benefits, including vesting and payment, or make any material determinations, under any Company Benefit Plan or Company Benefit Agreement or awards made thereunder; (vi) make any change in financial accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP or applicable Law; (vii) sell (or agree to sell), lease (as lessor), license, abandon, cancel or otherwise dispose of or subject to any Lien any portion of its properties or assets; (viii) (A) incur any additional indebtedness for borrowed money or guarantee any such indebtedness of another person (other than any such indebtedness or guarantees among the Company and the direct or indirect wholly owned Company Subsidiaries or among the direct or indirect wholly owned Company Subsidiaries), issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings under the Replacement DIP Facility consistent with the terms of the documentation thereto, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to or in the Company or any direct or indirect wholly owned Company Subsidiary; (ix) make or agree to make any capital expenditure or expenditures, other than in the ordinary course, consistent with past practice, or in accordance with the budget set forth on Section 4.01(a) of the Company Disclosure Letter; (x) make or change any material Tax election or method of accounting for Tax purposes, except insofar as may have been required by a change in GAAP or applicable Law, or settle or compromise any material Tax liability or refund; (xi) (A) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the repayment of the Existing DIP Facility consistent with the terms of the Replacement DIP Facility and payment, discharge or satisfaction of liabilities (to the extent reflected or reserved against in, or contemplated by, the most recent consolidated financial statements of the Company included in the Financial Statements or incurred since the date of the Financial Statements) in the ordinary course of businessbusiness consistent with past practice, (B) for transactions with respect to joint ventures existing on cancel any material indebtedness (individually or in the date hereof valued at less than $10,000,000 aggregate) or waive any claims or rights of substantial value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality or similar agreement to which the Company or any Company Subsidiary is a party; (xii) other than those Contracts that have been listed on any supplement to the Prior Plan to be assumed or rejected, assume or reject any Contract; (xiii) other than in the ordinary course of business consistent with past practice, and consistent with FCC policies and rules, enter into, amend or terminate any Contract that provides for transactions valued at less than payments that exceed $10,000,000 100,000 in the aggregate; (ivxiv) none adopt or authorize a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the any Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereofSubsidiary; (vxv) [Intentionally Omittedsettle, compromise, discharge or otherwise allow a claim as defined under Section 101(5) under the Bankruptcy Code in an amount that exceeds $50,000 as to any individual claim;] (xvi) fail to maintain in full force and effect insurance policies covering the Company and the Company Subsidiaries and their respective properties, assets and businesses in a form and amount consistent with the current insurance program applicable to the Company and any Company Subsidiary; or (xvii) authorize any of, or commit or agree to take any of, the foregoing actions.

Conduct of Business. The following shall be true in all material respects (a) Except as contemplated or permitted by this Agreement, as required by applicable Laws, as contemplated by any of the Closing Date: Except as otherwise expressly provided or permittedmatters set forth in Section 5.1(a) of the Company Disclosure Schedule, or contemplatedwith the prior written consent of Parent (which consent shall not be unreasonably withheld, by this Agreement delayed or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreementconditioned), during the period from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VII, (x) the Company shall, and shall cause each of its Subsidiaries to, use reasonable best efforts to conduct its business in all material respects in the Closingordinary course and to preserve intact its present lines of business, maintain its rights and franchises and preserve satisfactory relationships with Governmental Authorities, employees, customers and suppliers, and (y) the following actions Company shall not, and shall not have been taken without the prior written consent permit any of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):its Subsidiaries to: (i) the Company shall not have (A) declaredissue, set aside or paid any dividends onsell, or made grant any other distributions in respect of, any shares of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchasedany securities or rights convertible into, redeemed exchangeable or otherwise acquired (other than exercisable for, or evidencing the right to subscribe for any shares of its capital stock, or any rights, warrants or options to purchase any shares of its capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its capital stock, except as set forth on Section 7.1(r)(i5.1(a)(i) of the Company Disclosure Letter Schedule; (ii) redeem, purchase or pursuant to Company Benefit Plans) otherwise acquire any of its outstanding shares of its capital stock stock, or any rights, warrants or options to acquire any such sharesshares of its capital stock, except (A) pursuant to Company Material Contracts set forth on Section 5.1(a)(ii) of the Company Disclosure Schedule as in effect as of the date hereof or (B) in connection with withholding to satisfy Tax obligations with respect to Company RSUs or Company Performance Share Awards, acquisitions in connection with the forfeiture of equity awards, or acquisitions in connection with the settlement of Company RSUs or Company Performance Share Awards; (iiiii) (A) declare, authorize, set aside for payment or pay any dividend on, or make any other distribution in respect of, any shares of its capital stock, other than (1) dividends paid by any Subsidiary of the Company shall to the Company or to any wholly-owned Subsidiary of the Company, (2) quarterly cash dividends with respect to the Company Common Stock not have amended to exceed the current annual per share dividend rate by more than $0.04 per fiscal year, with record dates and payment dates consistent with the Company’s certificate current dividend practice, or (3) a “stub period” dividend to holders of incorporation record of Company Common Stock as of immediately prior to the Effective Time equal to the product of (x) the number of days from the record date for payment of the last quarterly dividend paid by the Company prior to the Effective Time, multiplied by (y) a daily dividend rate determined by dividing the amount of the last quarterly dividend prior to the Effective Time by ninety-one (91) or bylaws other than to increase the authorized (B) adjust, split, combine, subdivide or reclassify any shares of its capital stock; (iiiiv) neither incur any Indebtedness (or amend any Contract relating to Indebtedness) except for Indebtedness (1) incurred to replace, renew, extend, refinance or refund any existing Indebtedness, in the same principal amount of such existing Indebtedness and upon the maturity of such existing Indebtedness in accordance with its terms (2) incurred in accordance with Section 5.1(a)(iv) of the Company nor Disclosure Schedule, or (3) among the Company and any of its wholly-owned Subsidiaries or among any of such wholly-owned Subsidiaries; provided that, in no event shall any Indebtedness incurred pursuant hereto (or any Contract relating to such Indebtedness) include any term or provision pursuant to which the consummation of the Merger or the other transactions contemplated by this Agreement would reasonably be expected to result in a breach, default or event of default with respect to such Indebtedness (or any Contract relating to such Indebtedness) or permit the holders of any Indebtedness of the Company or any of its Subsidiaries shall have acquired to accelerate the payment of any Indebtedness or agreed require the Company or any of its Subsidiaries to, voluntarily or involuntarily, redeem, repurchase or repay any Indebtedness prior to acquire its scheduled maturity; (v) sell, pledge, dispose of, transfer, lease, license or encumber any of its properties, assets or business (including by merging merger, consolidation or consolidating withdisposition of stock or assets), other than (A) immaterial assets in the ordinary course of business consistent with past practice, (B) pursuant to Company Material Contracts set forth on Section 5.1(a)(v) of the Company Disclosure Schedule as in effect on the date of this Agreement, or (C) transfers among the Company and its wholly owned Subsidiaries; (vi) make capital expenditures except as budgeted in the Company’s current long term plan (plus a 20% variance) that was made available to Parent; (vii) make any acquisition (including by purchasing merger or share exchange) of the capital stock, equity securities, membership interests or a substantial material portion of the stockassets of any other Person, or other ownership interests make any loans, advances or capital contributions to, or investments in, or substantial portion of assets of, or by any other mannerperson (other than any wholly owned Subsidiary of the Company), any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) acquisitions not in excess of $25,000,000 individually or $50,000,000 in the aggregate or (B) pursuant to Company Material Contracts set forth on Section 5.1(a)(vii) of the Company Disclosure Schedule as in effect on the date of this Agreement; (viii) increase in any respect the compensation of any of its directors or employees (provided that payments of bonuses and other grants and awards made in the ordinary course consistent with past practice shall not constitute an increase in compensation), except (A) as required pursuant to applicable Law or the terms of Company Plans or other employee benefit plans or arrangements in effect on the date of this Agreement and (B) increases in salaries, wages and benefits of employees and director fees made in the ordinary course of business; (ix) adopt or amend any Company Plan except as required by Law or for immaterial or ministerial amendments; (x) make any material change to its methods of accounting, except as required by GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act, as required by a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization) or as required by applicable Law; (xi) amend the Company Charter Documents, amend the organizational documents of any Subsidiary, or exercise any approval or consent right within its discretion to amend any organizational documents of any Company Joint Venture; (xii) adopt a plan or agreement of complete or partial liquidation or dissolution; (xiii) enter into, modify or amend in any material respect, or terminate or waive any material right under, any Company Material Contract, except for any new agreement, modification, amendment, termination or waiver in the ordinary course of business consistent with past practice; (xiv) waive, release, assign, settle or compromise any material Claim against the Company or any of its Subsidiaries, other than waivers, releases, assignments, settlements or compromises that (A) with respect to the payment of monetary damages, involve only the payment of monetary damages (i) equal to or less than the amounts specifically reserved with respect thereto on the consolidated financial statements of the Company included in the Company SEC Documents (including the notes thereto) or (ii) do not exceed $5,000,000 in the aggregate during any consecutive twelve-month period, and (B) except as contemplated by Section 5.9, with respect to any non-monetary terms and conditions therein, impose or require actions that would not reasonably be expected to be material and adverse to the Company and its Subsidiaries, taken as a whole; (xv) make or change any material Tax election, change any material method of Tax accounting (except as required by applicable Law including the adoption of the tangible property regulations and disposition rules), settle or compromise any material Tax liability or refund, amend any material Tax Return (except that the Company and its Subsidiaries may amend any Tax Return in order to effectuate the carryback of specified liability losses, net operating losses, capital losses or tax credits), enter into any written agreement with a Governmental Authority with respect to Taxes, consent to the extension or waiver of the limitation period applicable to any Tax matter, or materially amend or change any of its methods for reporting income, deductions or accounting for Tax purposes, except, in each case, as required in relation to the items referenced in Section 3.9 of the Company Disclosure Schedule; (xvi) effectuate a “plant closing” or “mass layoff,” as those terms are defined in WARN; (xvii) enter into a new line of business; (xviii) materially change any of its energy price risk management and marketing of energy parameters, limits and guidelines (the “Company Risk Management Guidelines”) or enter into any physical commodity transactions, exchange-traded futures and options transactions, over-the-counter transactions and derivatives thereof or similar transactions other than as permitted by the Company Risk Management Guidelines; (xix) take any action that would reasonably be expected to prevent or materially impede, interfere with, hinder or delay the consummation by Parent or any of its Subsidiaries of the Transactions; or (xx) agree or commit to take any of the foregoing actions. (b) During the period from the date of this Agreement until the Effective Time, Parent and Merger Sub shall not, and Parent shall cause its Subsidiaries not to, take any action that would reasonably be expected to prevent or materially impede, interfere with, or delay the consummation by Parent or Merger Sub of the Transactions. (c) Notwithstanding anything to the contrary herein, the Company may, and may cause any of its Subsidiaries to, take reasonable actions in compliance with applicable Law with respect to any operational emergencies (including any restoration measures in response to any hurricane, tornado, tsunami, flood, earthquake or other natural disaster or weather-related event, circumstance or development), equipment failures, outages or an immediate and material threat to the health or safety of natural Persons. (d) Notwithstanding anything to the contrary contained herein, between the date of this Agreement and the Effective Time, the Company and its Subsidiaries may (i) continue to make Regulatory Filings in the ordinary course of business, (Bincluding without limitation those filings described on Section 5.1(d) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company PropertiesDisclosure Schedule, Non-Controlling Properties and (ii) take any other action contemplated by or Identified Assets shall have been sold described in any such state or otherwise transferred, except, (A) federal filings or other submissions filed or submitted in connection with such Regulatory Filings prior to the date of this Agreement in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;].

Conduct of Business. The following shall be true in all material respects as of During the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on period from the date of this Agreement to the AgreementEffective Time, the Company shall, and shall cause its subsidiaries to, carry on their respective businesses in the ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent therewith, use all reasonable efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the ClosingEffective Time, the following actions Company shall not, and shall not have been taken permit any of its subsidiaries to, without the prior written consent approval of each Purchaser Parent: (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): a) (i) the Company shall not have (A) declareddeclare, set aside or paid pay any dividends on, or made make any other distributions in respect of, any of the Company’s its capital stock (stock, other than dividends required and distributions by any direct or indirect wholly owned subsidiary of the Company to retain REIT status or to avoid the imposition of entity level taxesits parent, (Bii) split, combined combine or reclassified reclassify any of its capital stock or issued issue or authorized authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or (iii) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such sharesshares or other securities (other than in connection with the exercise of Company Options); (b) issue, deliver, sell, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities (other than (i) the issuance of Shares upon the exercise of Company Options outstanding on the date of this Agreement in accordance with their terms on such date (ii) conversion of Convertible Subordinated Notes into Shares, (iii) conversion of Series B Stock, (iv) issuances under the Company shall Stock Purchase Plan and (v) in the event that, for ministerial reasons, the delivery of the certificates of the 13,750,523 Shares and options for 3,328,113 Shares pursuant to the Memco acquisition (which are included in the outstanding shares under Section 2.1(c)) has not have amended been completed by the Company’s certificate time this Agreement is entered into, the completion of incorporation or bylaws other than to increase the authorized shares issuance of capital stocksuch Shares and option for such Shares in such amounts); (iiic) neither amend its articles or certificate of incorporation, by-laws or other comparable charter or organizational documents (other than immaterial changes, such as mergers of subsidiaries of the Company nor any of its Subsidiaries shall have acquired with other subsidiaries to implement the Company's internal restructuring); (d) acquire or agreed agree to acquire (including, without limitation, by merging merger, consolidation or consolidating withacquisition of stock or assets) any business, or by purchasing a substantial portion including through the acquisition of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or interest in any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof thereof; (i) mortgage or otherwise encumber or subject to any Lien, any of the Company Intellectual Property Rights or any other material properties or assets, (ii) except in the ordinary course of business consistent with past practice and pursuant to existing contracts or commitments, sell, lease, transfer or otherwise dispose of any of the Company Intellectual Property Rights or any other material properties or assets, or (Aiii) except in the ordinary course of business consistent with past practice or pursuant to existing contracts or commitments, license any of the Company Intellectual Property Rights; (f) make or agree to make any new capital expenditures in excess of $500,000; (g) make any material tax election (unless required by law) or settle or compromise any material income tax liability; (h) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice and in accordance with their terms, of (i) liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Company Filed SEC Documents or (ii) liabilities incurred in the ordinary course of business consistent with past practice, or, subject to the fiduciary duties of the Board of Directors of the Company as advised in writing by Xxxxxx Xxxxxx & Xxxxx, counsel to the Company, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any of its subsidiaries is a party; (i) commence a lawsuit other than (i) for the routine collection of bills or (ii) to enforce this Agreement or (iii) in such cases where the Company in good faith determines that the failure to commence suit would result in a material impairment of a valuable aspect of the Company's business, provided that the Company consults with Parent prior to filing such suit; (i) enter into or amend any employment or severance agreement or similar arrangements, (ii) enter into any agreement pursuant to which the Company or any of it subsidiaries will provide services for a term of more than 30 days at a fixed or capped price or otherwise pursuant to terms that are not consistent with agreements entered into by the Company or any of its subsidiaries in the ordinary course of business, (Biii) for transactions enter into any customer sale or license agreement with non-standard terms or at discounts from list prices in excess of 20%, (iv) pay commissions to sales employees except on the basis of executed customer contracts with respect to joint ventures existing on the date hereof valued at less than products actually delivered to customers, (v) enter into any contracts or series of related contracts in excess of $10,000,000 250,000, (vi) enter into or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none amend any agreement or arrangement that provides customers with enhanced rights or refunds of any nature upon a change of control of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, exceptits affiliates, (Avii) in the ordinary course of businessenter into any customer agreements providing for product replacements, (Bviii) enter into or amend any contract to a wholly owned Subsidiary provide for "YEAR 2000" remediation services, (ix) make any determination as to amounts payable under any plan, arrangement, or agreement, providing for discretionary incentive compensation or bonus to any officer, director, employee or independent contractor of the Company or any of its subsidiaries or (which Subsidiary shall x) enter into, adopt, or amend any agreement, arrangement, or Benefit Plan so as to increase the liability (whether or not contingent) of the Company or the Parent or any of their subsidiaries in respect of compensation or benefits except as may be subject required by law; or (k) authorize any of, or commit or agree to the same restrictions under this subsection (iv)), and (C) for sales or other transferstake any of, the net proceeds foregoing actions. Parent acknowledges and agrees that the terms of which shall this Section 5.1 do not exceed $1,000,000,000 prevent (i) payment of reasonable professional fees and expenses as a result of or in connection with the Company's negotiation or execution of this Agreement or the performance of the Company's obligations hereunder, (ii) the Company from implementing April 1, 1999 salary increases that have already been announced to employees and provided they are not in excess of 6% in the aggregate, when taken together with all such (iii) paying employee, sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided bonuses that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets accrued prior to the extent date hereof and (iv) the same shall have been consummated creation of a "Rabbi" severance trust and the funding of the severance payments for the top three executives in accordance with the express terms and conditions set forth amounts described in Article II hereof; (vSection 4.1(g) [Intentionally Omitted;]of the Disclosure Schedule.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereofa) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from From the date of this Agreement through the earlier of the Closing or the termination of this Agreement, except as otherwise expressly contemplated by this Agreement, required by Law, or disclosed in Section 5.4 of the Parent Disclosure Schedule, after the date of this Agreement and prior to the Closing, the following actions shall not have been taken without the prior written Purchaser’s consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):) Parent shall cause each Transferred Company and each Subsidiary thereof to: (1) conduct the Business in the ordinary course of business consistent with past practice, and maintain the assets of the Business in good operating condition suitable in all material respects for their intended purposes, ordinary wear and tear excepted; (2) use reasonable efforts to preserve intact their respective business organizations and goodwill, keep available the services of their respective present senior officers and key employees, and preserve the goodwill and business relationships with customers, suppliers, employees and others having business relationships with them; (3) not (i) the Company shall not have amend or propose to amend their respective certificates of incorporation or by-laws or equivalent organizational documents, (Aii) declaredsplit, combine or reclassify their outstanding capital stock or equity interests, (iii) declare, set aside or paid pay any dividends onnon-cash dividend or non-cash distribution to any person other than a Transferred Company or Subsidiary thereof (except as may facilitate the elimination of intercompany accounts contemplated by Section 5.7), or made (iv) repurchase, redeem or otherwise acquire any other distributions in respect of, any shares of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance other equity interests of any other securities in respect Transferred Company or any Subsidiary thereof (except as may facilitate the elimination of intercompany accounts contemplated by Section 5.7); (4) not issue, sell, pledge, dispose of or encumber, or agree to issue, sell, pledge, dispose of or encumber, any additional shares of, in lieu or any options, warrants or rights of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant any kind to Company Benefit Plans) acquire any shares of its their capital stock of any class or any rights, warrants debt or options to acquire any equity securities which are convertible into or exchangeable for such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii5) neither the Company nor except for transactions among any of its Parent, the Transferred Companies and their respective Subsidiaries shall have acquired and their respective Affiliates in the ordinary course, not (i) incur, assume, guarantee, endorse or agreed otherwise become liable (contingently or otherwise) with respect to acquire by merging or consolidating withany Debt in excess of $5 million, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) than trade accounts payable incurred in the ordinary course of business, or cancel any material third party Debt, (Bii) for transactions with respect to joint ventures existing on the date hereof valued at less make any acquisition of any assets, properties or rights in excess of $25 million other than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none acquisitions of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) inventory in the ordinary course of business, business consistent with past practice or (B) properties, rights or assets already contracted by Parent, any Transferred Company or any of their respective Subsidiaries, or (iii) sell, pledge, dispose of, exclusively license or encumber any assets, properties, rights or businesses having an aggregate value of $5 million or more other than sales or dispositions of (A) inventory in the ordinary course of business consistent with past practice or (B) businesses, properties, rights or assets already contracted by Parent, any Transferred Company or any of their respective Subsidiaries; (6) not accelerate the receipt of amounts due with respect to Receivables, or lengthen the period for payment of accounts payable; (7) except as is consistent with past practice or is required by law or as is pursuant to a wholly owned Subsidiary Combined to Separate Change or a Cox LIFO Change, not make or change any material Tax election, settle or compromise any material liability for Taxes, obtain any Tax ruling or materially amend any Tax Return, in each case, relating to any Transferred Company or any of their Subsidiaries, if such action would have a material cost to the Purchaser Indemnified Parties after Closing; (8) not enter into, amend, or extend any collective bargaining or other labor agreements; (9) not enter into or amend any employment, severance, retention, incentive or special pay agreement or arrangement with any employees of the Company Transferred Companies, except as required (i) pursuant to applicable Law or (ii) pursuant to contractual arrangements in effect as of the date of this Agreement; (10) not (A) increase the annual base salary, incentive compensation or other benefits of any executive officer or key employee of the Transferred Companies, or (B) in the case of any other employee of the Transferred Companies, materially increase any form of compensation, except, in each case, as required pursuant to contractual or incentive compensation arrangements in effect as of the date of this Agreement or as a result of any amendment to a Benefit Plan (which Subsidiary for this purpose shall be subject not include the base salary of, and incentive compensation arrangements provided to, executive officers or key employees of the Transferred Companies) that is not a Transferred Company Benefit Plan that applies uniformly to employees of the Transferred Companies and similarly situated other employees of Parent and its Affiliates, or, in the case of clause (B) only, for increases in the ordinary course of business consistent with past practice; (11) not adopt, enter into, or amend to materially increase benefits or obligations under any Transferred Company Benefit Plan, except (i) as required pursuant to contractual arrangements in effect as of the date of this Agreement or as required or expressly permitted under this Agreement or (ii) as required by applicable Law; (12) not acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all of the assets of, any Person, business, business unit or division or facility; (13) not, except if required by a change in GAAP or applicable Law, change its accounting principles or practices or method of application of such principles or practices; (14) not (i) other than pursuant to the same restrictions under capital expenditure plan described on Section 5.4(a)(14) of the Parent Disclosure Schedule (which includes the separation plan developed by the Transferred Companies in connection with the transactions contemplated by this subsection Agreement and the Ancillary Agreements (ivthe “Separation Plan”)), and (C) agree to purchase capital assets with payments to be made by the Business after the Closing in an amount in excess of $2 million for sales any one such purchase or other transfers, the net proceeds in excess of which shall not exceed $1,000,000,000 15 million in the aggregate, when taken together or enter into any Contract to lease, as lessee, any capital assets with all such sales and other transfers payments over the term thereof to be made by the Business after the Closing exceeding an aggregate of Company Properties$25 million, Non-Controlling Properties and Identified Assets or (the “Sales Cap”); provided that the Sales Cap shall not apply with respect ii) fail to sales or transfers of Identified Assets to the extent the same shall have been consummated make capital expenditures materially in accordance with the express terms capital expenditure budget set forth on Section 5.4(a)(14) of the Parent Disclosure Schedule; (15) not enter into any Contract of the type that, if in effect on the date hereof, would be required to be listed as a Material Contract or amend any material term, condition or provision of or terminate any Material Contract, except for Contracts or amendments thereto entered into or terminated in the ordinary course of business consistent with past practice; (16) not enter into any settlement, consent decree or other agreement or arrangement with any third party or Governmental Entity that will materially limit or materially and conditions adversely impact the way in which the Business may be operated after the Closing or would require the payment by the Business of any material funds after the Closing; (17) not adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganizations of the Transferred Companies; and (18) not agree or commit to do any of the actions set forth in Article II hereof;the foregoing clauses (3) to (17). (vb) [Intentionally Omitted;]Notwithstanding the above provisions of this Article V, prior to Closing, Parent may, and may cause its Affiliates to, remove all cash and cash equivalents from the Transferred Companies and their respective Subsidiaries in such manner as Parent shall determine.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: (a) Except as otherwise for matters expressly provided or permitted, or contemplated, permitted by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closingtime of the effectiveness of the appointment of the New Directors (the “Time of Appointment”) the Company shall, and shall cause each Company Subsidiary to, conduct its business in the usual, regular and ordinary course in substantially the same manner as previously conducted and use all commercially reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement, from the date of this Agreement to the Time of Appointment, the following actions Company shall not, and shall not have been taken permit any Company Subsidiary to, do any of the following without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):Parent: (i) the Company shall not have (A) declareddeclare, set aside or paid pay any dividends on, or made make any other distributions in respect of, any of the Company’s its capital stock (stock, other than dividends required and distributions by a direct or indirect wholly owned subsidiary of the Company to retain REIT status or to avoid the imposition of entity level taxesits parent, (B) split, combined combine or reclassified reclassify any of its capital stock or issued issue or authorized authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (C) purchasedpurchase, redeemed redeem or otherwise acquired (other than as set forth on Section 7.1(r)(i) acquire any shares of capital stock of the Company Disclosure Letter or pursuant to any Company Benefit Plans) Subsidiary or any shares of its capital stock other securities thereof or any rights, warrants or options to acquire any such sharesshares or other securities; (ii) the issue, deliver, sell or grant (A) any shares of its capital stock, (B) any Voting Company shall not have amended the Company’s certificate of incorporation Debt or bylaws other voting securities, (C) any securities convertible into or exchangeable for, or any options, warrants or rights to acquire, any such shares, Voting Company Debt, voting securities or convertible or exchangeable securities or (D) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than to increase the authorized shares issuance of capital stockCompany Common Stock upon the exercise of Options outstanding on the date of this Agreement and in accordance with their present terms; (iii) neither the Company nor any amend its certificate of its Subsidiaries shall have acquired incorporation, by-laws or agreed other comparable charter or organizational documents; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial equity interest in or portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof except or (B) any assets that are material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole; (v) enter or agree to enter into any joint venture or other strategic business arrangement with another Person; (vi) (A) grant to any executive officer or director of the Company or any Company Subsidiary any increase in compensation, except in the ordinary course of businessbusiness consistent with prior practice or to the extent required under employment agreements included in the Company SEC Documents, (B) for transactions with respect grant to joint ventures existing on any executive officer or director of the date hereof valued at less than $10,000,000 Company or any Company Subsidiary any increase in severance or termination pay, except to the extent required under any agreement included in or described in the Company SEC Documents, (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Propertiesenter into any employment, Non-Controlling Properties consulting, indemnification, severance or Identified Assets shall have been sold termination agreement with any such executive officer or otherwise transferred, exceptdirector, (AD) establish, adopt, enter into or amend in any material respect any collective bargaining agreement or Company Benefit Plan or (E) take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary course of businessbusiness consistent with prior practice, under any collective bargaining agreement or Company Benefit Plan; (vii) make any change in accounting methods, principles or practices materially affecting the reported consolidated assets, liabilities or results of operations of the Company, except insofar as may have been required by a change in GAAP; (viii) sell, lease (as lessor), license or otherwise dispose of or subject to any Lien any properties or assets, except sales of inventory and excess or obsolete assets in the ordinary course of business consistent with past practice; (ix) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any debt securities of another person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice, or (B) make any loans, advances or capital contributions to, or investments in, any other person, other than to or in the Company or any direct or indirect wholly owned subsidiary of the Company; (x) make or agree to make any new capital expenditure or expenditures that, individually, is in excess of $1,000,000 or, in the aggregate, are in excess of $5,000,000; (xi) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xii) (A) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of the Company included in the Company SEC Documents or incurred in the ordinary course of business consistent with past practice, (B) cancel any material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value or (C) waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a wholly owned Subsidiary party; or (xiii) authorize any of, or commit or agree to take any of, the foregoing actions. (b) The Company and Parent (including, (i) in its capacity as controlling stockholder of the Company or (which Subsidiary ii) after the Time of Appointment, through its representatives on the Company Board) shall not, and shall not permit any of their subsidiaries to take any action that would reasonably be subject expected to result in (a) any of the representations and warranties of the Company, or, in the case of Parent or Sub, Parent or Sub set forth in this Agreement that is qualified as to materiality becoming untrue, (b) any of such representations and warranties that is not so qualified becoming untrue in any material respect or (c) except as otherwise permitted by Section 5.02, any condition to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions Merger set forth in Article II hereof; (v) [Intentionally Omitted;]VII not being satisfied.

Conduct of Business. The following shall be true in all material respects as of (a) During the Closing Date: Except period from the date hereof to Closing, except as otherwise expressly provided or permitted, or contemplated, contemplated by this Agreement or as Buyer otherwise consents in writing, Seller will conduct the Plan Summary Term Sheet Business in the Ordinary Course and without limiting the generality of the foregoing will not: (includingi) incur or guaranty any indebtedness other than trade payables incurred in the Ordinary Course; (ii) incur, without limitationcreate or assume any Encumbrance (other than a Permitted Encumbrance) on any assets, other than in connection with implementing the matters contemplated by Article II hereofOrdinary Course; (iii) acquire or dispose of any assets, other than in the Ordinary Course; (iv) make any change of accounting or accounting practice, procedure or policy; (v) enter into any agreement, contract, lease or license (or series of related agreements, contracts, leases, and licenses) other than those in the Ordinary Course or those described in Schedule 5.2; (vi) accelerate, terminate, modify or cancel any Assumed Contract, or materially modify the Business’s backlog; (vii) make any capital expenditure (or series of related capital expenditures) involving more than $5,000; (viii) fail to maintain the Transferred Assets that are tangible and all parts thereof in as good working order and condition as at present, ordinary wear and tear excepted; (ix) fail to keep in full force and effect its current insurance policies or other comparable insurance affecting the Business or the Transferred Assets; (x) make any capital investment in, any loan to, or any order acquisition of the Bankruptcy Court securities or assets of, any other Person; (xi) issue any note, bond or other debt security or create, incur, assume or guarantee any indebtedness for borrowed money or capitalized lease obligation; (xii) cancel, compromise, waive or release any material right or Claim (or series of related rights and Claims) outside the Ordinary Course; (xiii) dispose of, license or permit to lapse any rights in effect on any Transferred Intellectual Property; (xiv) grant any increase in the base compensation of any of its employees or make any other material change in benefit plans or employment terms for any of its employees; (xv) pay or distribute any cash outside of the Ordinary Course; or (xvi) enter into any commitment to do any of the foregoing. (b) During the period from the date of hereof to Closing, Seller will use commercially reasonable efforts to preserve the AgreementBusiness and the Transferred Assets intact and to preserve for Buyer its relationship with licensors, developers, consultants, re-marketers, suppliers, distributors, customers, employees and others having regular business relations with it. If, during the period from the date of this Agreement hereof to the Closing, the following actions Seller desires to terminate the employment of any employee, it shall not have been taken without give the Buyer five (5) business days’ prior written consent of each Purchaser (which consent notice before making such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): (i) the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]termination.

Conduct of Business. The following shall be true in all material respects as of (a) During the period from the date hereof ------------------- to the Closing Date: Except , MJD covenants and agrees to cause the Company and the Subsidiaries to carry on their businesses in, and only in, the ordinary course of business, in substantially the same manner as otherwise heretofore conducted, and to use their reasonable best efforts to preserve intact their present business organization, keep available the services of their present officers and significant employees, sales agents and independent contractors, and preserve their relationships with customers, suppliers and others having business dealings with them, to the end that their goodwill and going business shall be maintained following the Closing. (b) Without limiting the generality of the foregoing, except as expressly provided or permitted, or contemplated, permitted by this Agreement or with the Plan Summary Term Sheet prior written consent of the Buyers or except as set forth on Schedule 5.2(b) hereto, MJD covenants and --------------- agrees that it will not permit the Company or any Subsidiary, and the Company covenants and agrees that it will not and will not permit any Subsidiary, to do or agree to do, on or after the date hereof, any of the following, on or before the Closing: (i) Amend its respective articles of incorporation, by-laws or other organizational documents; (ii) Issue, sell, transfer, assign, pledge, convey or dispose of, any capital stock or equivalent equity interests, including, without limitationbut not limited to, any subscriptions, options, warrants, calls, conversions or other rights, agreements, commitments, arrangements or understandings of any kind obligating MJD, the Company or any Subsidiary, contingently or otherwise, to issue or sell, or cause to be issued or sold, any capital stock or other equity interest of the Company or any Subsidiary; (iii) Repurchase or redeem any shares of capital stock or declare any dividend or make any distribution with respect to its capital stock or equivalent equity interests; (iv) Sell, assign, lease or otherwise transfer or dispose of any material assets, unless the same shall be replaced with assets of equal or greater value and utility; (v) Create, assume or permit to exist any Lien upon its assets, except for those in existence on the date of this Agreement and except for those additional Liens created in the ordinary course of business consistent with past practice that constitute Permitted Encumbrances; (vi) Cause or permit by any act, or failure to act, any of the Governmental Approvals to expire, be surrendered, adversely modified, or otherwise terminated; (vii) Waive any right under any Contract or license relating to its assets or business as presently conducted, except in the ordinary course of business consistent with past practice; (viii) Enter into or renew any Contract other than in the ordinary course of business consistent with past practice, except for any Contract, the amount of which has been provided for in the consolidated budget, dated November 5, 1996, of the Company, a copy of which has been delivered to the Buyers; (ix) Fail to timely make all material payments required to be paid under any Contract when due and otherwise pay all liabilities and satisfy all obligations (except those being contested in good faith by appropriate proceedings, for which adequate reserves have been created), in connection each case in a manner consistent with implementing past practice; (x) Fail to maintain its inventories of spare parts and expendable supplies, if any, at levels consistent with past practice; (xi) Increase or modify or agree to increase or modify the matters contemplated by Article II hereof) compensation, bonuses or other benefits or perquisites for any of the employees of the business of the Company or any order Subsidiary, except in the ordinary course of business consistent with past practice or pursuant to any employment agreements, Plans or collective bargaining agreements as set forth on Schedule 4.11, 4.12 or 4.13 hereto; --------------------------- (xii) Fail to remove, cure, correct and repair prior to the Closing any material deficiencies in its assets and any material violations under applicable statutes, rules, regulations, engineering standards or building, fire or zoning laws or regulations; (xiii) Fail to maintain consistent with past practice insurance policies on the business of the Bankruptcy Court Company and the Subsidiaries and their assets comparable in amount to that in effect on the date of the this Agreement; (xiv) Fail to maintain its books and records in accordance with GAAP; (xv) Enter into or renew any Contract with MJD, during the period from the date of this Agreement to the ClosingMJD Partners, Inc., the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheldCompany, conditioned or delayed): (i) the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect ofSubsidiary, any of Xxxxxx X. Xxxxxxxxx, Bugger Associates, Inc., Xxxxx Xxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxx or any of their Affiliates, or any Affiliate of MJD, MJD Partners, Inc., the Company’s capital stock Company or any Subsidiary; (other than dividends required xvi) Enter into or adversely modify the terms of any Contract, binding commitment or letter of intent relating to retain REIT status the acquisition of the assets or securities of any Person; (xvii) Incur any indebtedness for money borrowed in excess of $1,000,000; or (xviii) Take or fail to avoid the imposition of entity level taxes, (B) split, combined or reclassified take any commercially reasonable action that would cause any of its capital stock or issued or authorized representations and warranties not to be true and correct on the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) Closing Date in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions manner required under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II Section 6.1 hereof; (v) [Intentionally Omitted;].

Conduct of Business. The following shall be true (a) Prior to the Effective Time, except as set forth in all material respects the Company Disclosure Letter or as of the Closing Date: Except as otherwise expressly provided or permittedcontemplated by this Agreement, including Section 5.14, or as consented to in writing by Parent, the Company: (i) shall, and shall cause each of its Subsidiaries to, conduct its operations according to their usual, regular and ordinary course in substantially the same manner as heretofore conducted; (ii) shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact their business organizations and goodwill, keep available the services of their respective officers and employees and maintain satisfactory relationships with those persons having business relationships with them; (iii) shall not amend its certificate of incorporation or bylaws; (iv) shall promptly notify Parent of any material adverse change in its financial condition or business or any termination, cancellation, repudiation or material breach of any Company Material Contract (or communications expressly indicating the same may be contemplated), by this Agreement or the Plan Summary Term Sheet institution of any material litigation or material governmental complaints, investigations or hearings (includingor communications in writing indicating the same may be contemplated), without limitationor the breach in any material respect of any representation or warranty contained herein; (v) shall promptly make available (in paper form or via the Internet) to Parent true and correct copies of any report, in connection statement or schedule filed with implementing the matters contemplated by Article II hereofSEC subsequent to the date of this Agreement; (vi) or any order shall not (A) except pursuant to the exercise of the Bankruptcy Court in effect options, warrants, conversion rights and other contractual rights existing on the date hereof and disclosed in the Company Disclosure Letter or referred to in clause (B) below, issue any shares of its capital stock, effect any stock split or otherwise change its capitalization as it existed on the Agreementdate hereof; (B) grant, during confer or award any option, warrant, conversion right or other right not existing on the period from date hereof to acquire any shares of its capital stock except (1) the grant of options or restricted shares to new employees consistent with past practice in an aggregate amount not to exceed 100,000 Company Common Shares or (2) pursuant to contractual commitments existing on the date of this Agreement to and disclosed in the ClosingCompany Disclosure Letter; (C) increase any compensation or benefits of any officer, director, employee or agent of the following actions Company or any of its Subsidiaries, except in the ordinary course of business consistent with the past practice of the Company or any of its Subsidiaries (as applicable), or enter into or amend any employment agreement or severance agreement with any of its present or future officers, directors or employees except with new employees consistent with past practice, or (D) adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend (except as required by law) any existing employee benefit plan in any material respect; (vii) shall not, and, in the case of clause (B) below, shall not have been taken without the prior written consent permit any of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): (i) the Company shall not have its Subsidiaries to (A) declareddeclare, set aside or paid pay any dividends on, dividend or made make any other distributions in distribution or payment with respect of, to any shares of the Company’s its capital stock (other than the Company's ordinary quarterly dividends required payable with respect to retain REIT status the Company Common Shares of $0.04 per share and ordinary semi-annual dividends payable with respect to the Company Preferred Shares of $32.50 per share) or to avoid the imposition of entity level taxes, (B) splitredeem, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed purchase or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) acquire any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate capital stock of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries or any option, warrant, conversion right or other right to acquire such shares, or make any commitment for any such action; (viii) shall have acquired not, and shall not permit any of its Subsidiaries to, sell, lease or agreed otherwise dispose of any of its assets (including capital stock of Subsidiaries) for an amount in excess of $150,000,000, individually or in the aggregate, except in the ordinary course of business and for fair value; (ix) shall not, and shall not permit any of its Subsidiaries to, except pursuant to contractual commitments in effect on the date hereof and disclosed in the Company Disclosure Letter and except for amounts that in the aggregate do not exceed $40,000,000 authorize, propose, agree to, enter into or consummate any merger, consolidation or business combination transaction (other than the Merger) or acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregatethereof; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]

Conduct of Business. The following During the period from the date hereof to the Closing, except as otherwise contemplated by this Agreement, Seller shall cause the Company to be true operated only in all material respects as the ordinary course of business consistent with past practice. Seller will use its reasonable best efforts to cause the Company to preserve intact the present organization of the Closing Date: Except Company, keep available the services of the present officers and employees of the Company and preserve the Company's relationships with customers, suppliers, licensors, licensees, contractors, distributors and others having significant business dealings with the Company, as the case may be. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted, or contemplated, by in this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser Purchaser, Seller agrees that the Company shall not: (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): a) (i) the Company shall not have authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized whether through the issuance or granting of any other securities in respect ofoptions, in lieu of warrants, commitments, subscriptions, rights to purchase or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plansotherwise) any shares of its capital stock or any rightsother securities or equity equivalents, warrants (ii) split, combine or options to acquire reclassify any shares of its capital stock or (iii) amend the terms of any such sharessecurities or agreements outstanding on the date hereof; (iib) the Company shall not have amended the Company’s amend its certificate of incorporation or bylaws other than to increase the authorized shares of capital stockby-laws; (iiic) neither the Company nor declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem, repurchase or otherwise acquire any of its Subsidiaries shall have acquired securities, except that Flavors and the Company may declare, set aside or agreed pay a cash dividend in an amount not to acquire by merging exceed $5.4 million; (i) sell, lease, transfer or consolidating with, dispose of any assets or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of businessrights, (Bii) permit any asset to suffer any Encumbrance thereupon, except for transactions with respect to joint ventures such Encumbrances existing on the date hereof valued at less than $10,000,000 and Permitted Liens, (iii) acquire any assets or (C) for transactions valued at less than $10,000,000 rights, unless in the aggregate; case of (ivi), (ii) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, exceptand (iii), (A) in the ordinary course of businessbusiness consistent with past practice, or (B) pursuant to a wholly owned Subsidiary obligations in effect on the date hereof or (iv) enter into any commitment or transaction binding on the Company with respect to (i), (ii) or (iii) above, unless in the ordinary course of business consistent with past practice; (e) (i) incur or assume any indebtedness for borrowed money other than in the ordinary course of business consistent with past practice, (ii) issue or sell any debt securities or warrants or rights to acquire any debt securities, (iii) assume, guarantee, endorse or otherwise become liable (whether directly, contingently or otherwise) for the obligations of any other person, or (iv) make any loans, advances or capital contributions to, or investments in, any other person; (f) pay, discharge or satisfy any liability, obligation, or Encumbrance (absolute, accrued, asserted or unasserted, contingent or otherwise) of the Company, other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of claims, liabilities or obligations of the Company (which Subsidiary shall be subject to i) reflected or reserved against on the same restrictions under this subsection Balance Sheet or (iv)), and (Cii) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 incurred in the aggregateordinary course of business consistent with past practice since the date of the Balance Sheet; (g) change any of the accounting or tax principles, when taken together with all such sales and other transfers practices or methods used by the Company (except as required by GAAP or law); (h) enter into, adopt, amend or terminate any Plan, increase in any manner the compensation or fringe benefits of any officer or employee of the Company Propertiesor pay any benefit not required by any existing Plan, Non-Controlling Properties and Identified Assets (or enter into any contract, agreement commitment or arrangement to do any of the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets foregoing, except to the extent required by applicable law or entered into in the same shall have been consummated ordinary course of business consistent with past practice; (i) enter into or offer to enter into any employment arrangement (other than in accordance the ordinary course of business consistent with past practice for employees at will with annual salaries of not more than $100,000 per person) or any consulting arrangement with any person (other than in the express terms and conditions ordinary course of business consistent with past practice); (j) make or authorize any capital expenditures; (k) settle or compromise any Tax liability; (i) enter into, amend or terminate any Contract, except in the ordinary course of business consistent with past practice, or (ii) take any action or fail to take any action that, with or without either notice or lapse of time, would constitute a material default under any such Contract; (m) make any payments, loans, advances or other distributions to, or enter into any transaction, agreement or arrangement with, Seller, or any of Seller's affiliates or associates; (n) make any change in its accounts payable practices; (o) terminate or amend or fail to perform any of its obligations, permit any default to exist or cause any material breach under any of the Company policies of insurance set forth in Article II hereofSection 2.13 of the Disclosure Schedule; (vp) [Intentionally Omitteddispose of or permit to lapse any material item of Intellectual Property;] (q) take, or agree in writing or otherwise to take, any of the actions set forth in this Section 4.1.

Conduct of Business. The following From the date hereof through the Closing, except as disclosed on Schedule 5.4 hereto or otherwise provided for in, or contemplated by, this Agreement, except for actions in connection with the Pre-Closing Transactions, and except as consented to or approved by Buyer in writing, Seller covenants and agrees that: (a) each of the Company and the Subsidiaries shall be true operate its business in the ordinary and usual course in all material respects as in accordance with past practices; (b) none of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) Company or any order of the Bankruptcy Court in effect on the date of the AgreementSubsidiaries shall issue, during the period from the date of this Agreement sell or agree to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned issue or delayed): sell (i) the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any shares of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (Cii) purchasedany securities convertible into, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter options with respect to, or pursuant warrants to Company Benefit Plans) purchase or rights to subscribe for, any shares of its capital stock or any rights, warrants or options to acquire any such sharesstock; (iic) none of the Company or any of the Subsidiaries shall not have amended the Company’s amend its certificate of incorporation or bylaws by-laws (or other than to increase the authorized shares of capital stockcharter documents); (iiid) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures business or as required by law or contractual obligations or other understandings or arrangements existing on the date hereof valued at less than $10,000,000 or as a result of an action applicable to a broad group of other similarly situated employees of UTC, none of the Company or any of the Subsidiaries shall (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its directors, officers or other employees; (ii) pay or agree to pay any pension, retirement allowance or other employee benefit to any such director, officer or employee, whether past or present; (iii) enter into any new employment, severance, consulting, or other compensation agreement with any existing director, officer or employee; or (Civ) for transactions valued at less than $10,000,000 commit itself to any additional pension, profit-sharing, deferred compensation, group insurance, severance pay, retirement or other employee benefit plan, fund or similar arrangement or amend or commit itself to amend any of such plans, funds or similar arrangements in existence on the aggregatedate hereof; (e) except in the ordinary course of business or as otherwise provided for in or contemplated by this Agreement, none of the Company or any of the Subsidiaries shall (i) sell, transfer or otherwise dispose of any of its material assets, (ii) create any new Lien on its properties or assets (other than Permitted Liens), (iii) enter into any joint venture, partnership or other similar arrangement or form any other new material arrangement for the conduct of its business, (iv) incur any indebtedness for borrowed money in excess of $50 million in the aggregate that would be outstanding immediately subsequent to the Closing or (v) purchase any material assets or securities of any person; and (f) none of the Company Propertiesor any of the Subsidiaries shall agree to take any action prohibited by this Section 5.4. Notwithstanding the provisions of this Section 5.4, Non-Controlling Properties nothing in this Agreement shall be construed or Identified Assets shall have been sold interpreted to prevent the Company or otherwise transferredany of the Subsidiaries from (i) paying or making regular or special dividends or other distributions consisting of Cash, exceptor the shares of, or other interests in, entities not included in the Automotive Business, (Aii) making or accepting inter-company or intra-company advances to, from or with one another or with Seller or any of its Affiliates, or (iii) engaging in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject any transaction incident to the same restrictions under this subsection (iv)), normal cash management procedures of Seller and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]its Affiliates.

Conduct of Business. The following shall be true in all material respects as of Pending the Closing Date: Purchase. ---------------------------------------- 6.1.1 Except as otherwise expressly provided or permitted, or contemplated, contemplated by this Agreement or the Plan Summary Term Sheet (includingAgreement, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on after the date hereof and prior to the Closing or earlier termination of the this Agreement, during the period from the date of this Agreement to the Closing, the following actions unless Compass shall not have been taken without the prior written consent of each Purchaser otherwise agree in writing (which consent such Purchaser agrees agreement shall not be unreasonably withheld), conditioned or delayed):the Company shall, and shall cause each Company Subsidiary to: (a) conduct its businesses in the ordinary and usual course and consistent with past practices; (b) not (i) the Company shall not have amend its charter or by-laws, (Aii) declaredsplit, combine or reclassify its outstanding capital stock or (iii) declare, set aside or paid pay any dividends ondividend or distribution payable in cash, stock, property or otherwise; (c) not issue, sell, pledge or dispose of, or made agree to issue, sell, pledge or dispose of (i) any other distributions in respect additional shares of, or any options, warrants or rights of the Company’s any kind to acquire any shares of, its capital stock of any class, (ii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities; (d) not (i) incur or become contingently liable with respect to any indebtedness for borrowed money other than dividends required to retain REIT status (A) borrowings in the ordinary course of business or to avoid the imposition of entity level taxes, (B) splitborrowings to refinance existing indebtedness on terms comparable with or more favorable than those at the date hereof, combined (ii) redeem, purchase, acquire or reclassified any of its capital stock offer to purchase or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) acquire any shares of its capital stock or any rightsoptions, warrants or options rights to acquire any such sharesof its capital stock or any security convertible into or exchangeable for its capital stock, (iii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of business or (iv) enter into any contract, agreement, commitment or arrangement with respect to any of the foregoing; (iie) use all reasonable efforts to preserve intact its business organizations and goodwill, keep available the Company shall services of its present officers and key employees, and preserve the goodwill and business relationships with clients and others having business relationships with it and not have amended engage in any action, directly or indirectly, with the Company’s certificate of incorporation or bylaws other than intent to increase adversely impact the authorized shares of capital stocktransactions contemplated by this Agreement; (iiif) neither confer as reasonably required by Compass with one or more representatives of Compass to report material operational matters and the Company nor general status of ongoing operations; (g) not, (i) increase in any manner the base compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its Subsidiaries shall have acquired employees, except as consistent with past practices of the Company or agreed Company Subsidiary, as applicable, (ii) pay or agree to pay any additional pension, retirement allowance or other employee benefit under any Employee Plan to any such employee, whether past or present, other than as required pursuant to the terms thereof, (iii) enter into any new employment, severance, consulting, or other compensation agreement with any of its existing employees, (iv) amend or enter into a new Employee Plan (except as required by Law) or amend or enter into a new collective bargaining agreement, or (v) engage in any new Affiliate Transaction; (h) comply in all material respects with all applicable Laws; (i) not make any material investment in, directly or indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, equity interest in or substantial portion of the assets of, or by any other manner, any business businesses or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof except or otherwise acquire or agree to acquire any assets not in the ordinary course of business in each case which are material to it; (Aj) not sell, lease, license, encumber or otherwise dispose of, or agree to sell, lease, license, encumber or otherwise dispose of, any of its assets other than in the ordinary course of business; (k) maintain with its current insurance carriers (or with comparable carriers) insurance on its tangible assets and its businesses in such amounts and against such risks and losses as are consistent with past practice; and (l) maintain adequate net working capital to operate the Business consistent with past practices. 6.1.2 Except as otherwise contemplated by this Agreement, (B) for transactions the Other Stock Purchase Agreements and with respect to joint ventures existing on the IPO, after the date hereof valued at less than $10,000,000 and prior to the Closing or earlier termination of this Agreement, unless the Company shall otherwise agree in writing (which agreement shall not be unreasonably withheld), Compass shall: (a) not (i) amend its charter or by-laws (provided, however, that Compass shall prior to the Closing, file an amended and restated charter in substantially the form attached hereto as Exhibit ------- 6.1.2(a)), (ii) split, combine or reclassify its outstanding capital --------- stock or (Ciii) for transactions valued at less than $10,000,000 declare, set aside or pay any dividend or distribution payable in the aggregatecash, stock, property or otherwise; (ivb) none not issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of the Company Properties(i) any additional shares of, Non-Controlling Properties or Identified Assets shall have been sold any option, warrants or otherwise transferredrights of any kind to acquire any shares of, exceptits capital stock of any class, (Aii) any debt with voting rights or (iii) any debt or equity securities convertible into or exchangeable for, or any rights, warrants, calls, subscriptions, or options to acquire, any such capital stock, debt with voting rights or convertible securities; (c) not (i) redeem, purchase, acquire or offer to purchase or acquire any shares of its capital stock or any options, warrants or rights to acquire any of its capital stock or any security convertible into or exchangeable for its capital stock, (ii) sell, pledge, dispose of or encumber any assets or businesses other than dispositions in the ordinary course of businessbusiness or (iii) enter into any contract, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv))agreement, and (C) for sales commitment or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply arrangement with respect to sales any of the foregoing; (d) comply in all material respects with all applicable Laws; and (e) not make any material investment in, directly or transfers indirectly, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of Identified Assets the assets of, or by any other manner, any businesses or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets not in the ordinary course of business in each case which are material to it. 6.1.3 Notwithstanding the fact that such action might otherwise be permitted pursuant to this Article VI, none of the parties hereto shall ---------- take, or permit any of their respective subsidiaries to take, any action that would or is reasonably likely to result in any of the respective representations or warranties of the parties hereto set forth in this Agreement being untrue or in any of the conditions to the extent consummation of the same shall have been consummated in accordance with the express terms and conditions transactions contemplated hereunder set forth in Article II hereof; (v) [Intentionally Omitted;]IX not being ---------- satisfied.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, contemplated by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions Company shall (and shall cause each Subsidiary to) conduct its operations in the Ordinary Course of Business and in compliance with all applicable laws and regulations and, to the extent consistent therewith, use all reasonable efforts to preserve intact its current business organization, keep its physical assets in good working condition, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall not have been taken be impaired in any material respect. Without limiting the generality of the foregoing, during the period from the date of this Agreement to the Closing, neither the Company nor any Subsidiary shall, without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):the Buyer: (ia) issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the Company shall not have (Aissuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) declaredor authorize the issuance, set aside sale or paid any dividends ondelivery of, or made any other distributions in respect ofredeem or repurchase, any stock of the Company’s capital stock (other than dividends required to retain REIT status any class or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such sharesstock or other securities (except pursuant to the conversion or exercise of convertible securities, Options or Warrants outstanding on the date hereof), or amend any of the terms of any such convertible securities, Options or Warrants; (iib) the Company shall not have amended the Company’s certificate of incorporation split, combine or bylaws other than to increase the authorized reclassify any shares of its capital stock or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; (iiic) neither create, incur or assume any debt not currently outstanding (including obligations in respect of capital leases) except in the Company nor Ordinary Course of Business; assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any of its Subsidiaries shall have acquired other person or agreed to acquire by merging entity; or consolidating withmake any loans, advances or capital contributions to, or by purchasing a substantial portion investments in, any other person or entity; (d) enter into, adopt or amend any Employee Benefit Plan or any employment or severance agreement or arrangement of the stock, type described in Section 2.18(d) or other ownership interests in, (except for normal increases in the Ordinary Course of Business) increase in any manner the compensation or substantial portion of assets fringe benefits of, or materially modify the employment terms of, its directors, officers or employees, generally or individually, or pay any benefit not required by the terms in effect on the date hereof of any existing Employee Benefit Plan; (e) acquire, sell, lease, encumber or dispose of any assets or property (including without limitation any shares or other manner, equity interests in or securities of any business Subsidiary or any corporation, partnership, association or other business organization or division thereof), other than purchases and sales of assets in the Ordinary Course of Business; (f) amend its articles of association, joint venturecharter and/or by-laws, limited as applicable; (g) change in any material respect its accounting methods, principles or practices, except insofar as may be required by a generally applicable change in GAAP; (h) discharge or satisfy any Security Interest or pay any obligation or liability company or other entity or division thereof except (A) than in the ordinary course Ordinary Course of businessBusiness; (i) mortgage or pledge any of its property or assets or subject any such assets to any Security Interest; (j) sell, assign, transfer or license any Intellectual Property, other than in the Ordinary Course of Business; (Bk) for transactions with respect enter into, amend, terminate, take or omit to joint ventures existing on the date hereof valued at less than take any action that would constitute a violation of or default under, or waive any rights under, any material contract or agreement; (l) make or commit to make any capital expenditure in excess of $10,000,000 50,000 per item or (C) for transactions valued at less than $10,000,000 250,000 in the aggregate; (ivm) none take any action or fail to take any action permitted by this Agreement with the knowledge that such action or failure to take action would result in (i) any of the representations and warranties of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold the Company Stockholders set forth in this Agreement or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary any of the Company Other Stock Purchase Agreements becoming untrue or (which Subsidiary shall be subject ii) any of the conditions to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions any Party's obligations set forth in Article II hereofVI not being satisfied; (vn) [Intentionally Omitted;]take any action that would jeopardize the treatment of the Acquisition as a "pooling of interests" for accounting purposes; or (o) agree in writing or otherwise to take any of the foregoing actions.

Conduct of Business. The following shall be true (a) Except for matters (1) set forth in all material respects as Section 5.01 of the Closing Date: Except as otherwise expressly provided Seller Disclosure Schedule, (2) consented to by Purchaser in writing (such consent not to be unreasonably withheld, conditioned or permitteddelayed), or contemplated, (3) otherwise contemplated by the terms of this Agreement or the Plan Summary Term Sheet (includingas prohibited or required by applicable Law, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closingearlier of the Closing Date and the termination of this Agreement in accordance with Section 7.01 (the “Pre-Closing Period”), Seller shall (x) use its commercially reasonable efforts to cause the Company to conduct the Company Business in the ordinary course in a manner consistent with past practice (provided, that no action taken or not taken by Seller or its affiliates in order to comply with any requirement of clauses (i) through (ix) below shall be deemed a breach of this clause (x)) and (y) not, and shall cause its affiliates (including the Company) not to, take any of the following actions shall not have been taken without with respect to the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned Company or delayed):the Company Business: (i) adopt or propose any change to the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase of the authorized shares Company; [***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Sections 200.80(b)(4) and 230.406. (ii) issue, pledge, dispose of, transfer or sell any capital stock, notes, bonds or other securities of the Company (or any option, warrant or other right to acquire the same) or redeem any of the capital stock of the Company; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in acquire a business or substantially all of the ordinary course assets of businessa business from any other person, (B) for transactions merge or consolidate with respect to joint ventures existing on the date hereof valued at less than $10,000,000 any other person or (C) adopt of plan of liquidation, dissolve, wind-up, file a petition in bankruptcy, make an assignment for transactions valued at less than $10,000,000 in the aggregatebenefit of creditors or file a petition seeking reorganization or arrangement or other action under federal or state bankruptcy Laws; (iv) none dispose of a material portion of the assets of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in subject the ordinary course of business, (B) to a wholly owned Subsidiary assets of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv))any Lien, and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereofthan a Permitted Lien; (v) incur any Indebtedness, other than intercompany charges that will be settled or cancelled on or before the Closing Date in accordance with Section 5.05, or make any loans, advances, guarantees or capital contributions to, or investments in, any person; (vi) change any material method of accounting or accounting practice or policy used by the Company, other than such changes as are required by GAAP or a Governmental Entity; (vii) with respect to the Company, (A) make, revoke or change any election with respect to Taxes, (B) settle or compromise any Tax audit, claim, or assessment or any liability for Taxes, (C) file any amendment to a Tax Return, (D) enter into any closing agreement or obtain any Tax ruling or seek to change any Tax accounting period, (E) surrender any right to claim a refund of Taxes, (F) consent to any extension or waiver with respect to any Tax Claim, assessment, or liability, or (G) prepare or file any Tax Return (other than an amendment to a Tax Return) in a manner inconsistent with past practice (unless otherwise required by Law); (viii) (A) hire or terminate the employment of any employee of the Company, (B) increase the compensation of any employee of the Company or (C) modify or adopt any employee benefit plan of the Company; (ix) enter into any Company Contract or materially amend, waive any material right under or voluntarily terminate any Company Contract; (x) cause the Company to declare and pay any non-cash dividends or distributions; or (xi) agree or commit to do any of the foregoing. (b) Nothing contained in this Agreement is intended to give Purchaser or its affiliates, directly or indirectly, the right to control or direct the Company or its operations prior to the Closing, and nothing contained in this Agreement is intended to give Seller or any of its affiliates, directly or indirectly, the right to control or direct Purchaser’s operations. Prior to the Closing, each of Purchaser, on the one hand, and Seller, on the other hand, shall exercise, [Intentionally Omitted;]***] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Sections 200.80(b)(4) and 230.406. consistent with the terms and conditions of this Agreement, complete control and supervision over its and its affiliates’ respective operations.

Conduct of Business. The following shall be true in all material respects as of From the Original Agreement Date until the Closing Date: Except , the Company and its Subsidiaries shall conduct their businesses in the ordinary and regular course of business and consistent with past practice and shall use their reasonable best efforts to preserve intact the business organizations of the Company and its Subsidiaries, to keep available the services of their present officers and employees and maintain their present relationships with Governmental Authorities and other Persons having business relationships with the Company or any Subsidiary. Without limiting the generality of the foregoing, from the Original Agreement Date until the Closing Date, except as otherwise expressly provided or permitted, or contemplated, by in this Agreement or the Plan Summary Term Sheet (includingReorganization Plan, without limitationneither the Company nor any Subsidiary shall, in connection with implementing the matters contemplated by Article II hereof) directly or indirectly, do, or propose or commit to do, any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of the Purchaser: (a) amend or make any other change in its Charter or Bylaws or other organization documents, except as specifically contemplated by this Agreement; (b) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock or other equity securities of, or ownership interests in, the Company or any Subsidiary or any options, warrants, calls or other rights to acquire any shares of capital stock or other equity securities of, or ownership interests in, the Company or any Subsidiary; (c) sell, lease, transfer or otherwise dispose of any material properties or assets of the Company or any Subsidiary (whether or not reflected on the books of the Company or any Subsidiary and whether real, personal or mixed, tangible or intangible) except for (A) Mortgages and real estate owned by the Company or any Subsidiary as a result of the foreclosure of any Mortgage, in each Purchaser case, sold, transferred or disposed of in the ordinary and regular course of business or (which consent B) assets sold in one or more series of related transactions in an amount not exceeding $15,000, provided that the total of all such Purchaser agrees transactions shall not be unreasonably withheldexceed $50,000 in aggregate; (d) consolidate with, conditioned or delayed):merge with or into, any Person; (e) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of the Company or redeem, purchase or otherwise acquire any capital stock or other equity interests of, or ownership interests in, the Company or any Subsidiary; (f) reclassify, combine, split or subdivide any shares of the capital stock of the Company or any Subsidiary; 33 (g) incur or assume any indebtedness for borrowed money or issue any debentures, notes or other debt securities or assume, guarantee, endorse or otherwise become liable (whether directly, contingently or otherwise) for the obligations of any other Person, except in connection with the origination of Mortgages in the ordinary and regular course of business and consistent with past practice; (h) make any loans, advances or capital contributions to, or investments in, any other Person, except in connection with the origination of Mortgages in the ordinary and regular course of business and consistent with past practice; (i) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof; (j) create or incur any Liens upon the properties or assets of the Company shall or any Subsidiary or suffer to exist any such Liens (other than Permitted Liens), except in connection with the origination of Mortgages in the ordinary and regular course of business and consistent with past practice; (k) enter into any Contracts or commitments or engage in any transactions not have in the ordinary and regular course of business and consistent with past practice, including, without limitation, opening any new business locations (Aincluding any net branch arrangement) declaredor entering into any Contracts or commitments to do the same; (l) engage in any transactions with any Affiliate (other than transactions between the Company and any of its direct or indirect wholly owned Subsidiaries), set aside except on terms and conditions at least as favorable to the Company as those that would apply in the case of a similar arms'-length transaction; (m) enter into any agreement, arrangement or paid understanding with any dividends ondirector, officer or key employee of the Company or any Subsidiary providing for the employment of any such director, officer or key employee or any increase in the compensation, severance or termination benefits payable or to become payable by the Company or any Subsidiary to any such director, officer or key employee or make any loan to or enter into any other material transaction or arrangement with any such director, officer or key employee; (n) increase the benefits payable by the Company or any Subsidiary under, enter into or adopt any new, or amend any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option, stock purchase or other employee benefit plan, program or arrangement made to, for or with any other distributions of the directors, officers or employees of the Company or any Subsidiary; (o) fail to keep all of the properties and assets of insurable character of the Company or any Subsidiary insured in respect ofaccordance with the past practices of the Company; (p) cancel or compromise any material claim, waive or release any material rights or change or terminate any material Contract of the Company or any Subsidiary, except in the ordinary and regular course of business and consistent with past practice; (q) fail to maintain in full force and effect all Permits that are required in connection with the conduct of the businesses of the Company or any Subsidiary; (r) change the accounting principles or methods of the Company or any Subsidiary, except as required by law or as a result of any mandatory change in accounting standards; (s) fail to maintain the books and records of the Company or any Subsidiary in the usual, regular and ordinary manner; (t) make any tax elections or settle or compromise any income tax liability, except in the ordinary and regular course of business and consistent with past practice; (u) prior to the Closing Date, take any action which would cause any representation or warranty of the Company contained in this Agreement to be untrue or incorrect as of the date when made or (except in the case of representations and warranties made as of a specific date) as of any future date; and (v) authorize, or commit or agree to take, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]foregoing actions.

Conduct of Business. The following shall be true (a) Except as set forth in all material respects as Section 4.01 of the Closing Date: Except as otherwise expressly provided or permittedCompany Disclosure Letter, or contemplated, required or permitted by this Agreement Agreement, required by Law or consented to in writing by Parent (such consent not to be unreasonably withheld or delayed to the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreementextent not otherwise stated below), during the period from the date of this Agreement to the ClosingEffective Time, the following actions Company shall, and shall cause each of its Subsidiaries to, carry on its business in the ordinary course. Without limiting the generality of the foregoing, except as set forth in Section 4.01 of the Company Disclosure Letter, contemplated, required or permitted by this Agreement, required by Law (including, as applicable, Section 409A of the Code) or consented to in writing by Parent (such consent not to be unreasonably withheld or delayed for any item other than those referred to below in clauses (i) – (iv), (v)(A), (vi), (vii), (xii) and (xvii) and, to the extent pertaining to any item covered by such clauses, clause (xviii)), during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not have been taken without the prior written consent permit any of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):its Subsidiaries to: (i) the Company shall not have (A) declareddeclare, set aside or paid pay any dividends on, or made make any other distributions (whether in cash, stock or property) in respect of, any of the Company’s its capital stock (stock, other than dividends required or distributions by a direct or indirect wholly owned Subsidiary of the Company to retain REIT status or to avoid the imposition of entity level taxes, its parent; (Bii) split, combined combine or reclassified reclassify any of its capital stock or issued issue or authorized authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) purchase, or (C) purchased, redeemed redeem or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter acquire, directly or pursuant to Company Benefit Plans) indirectly, any shares of its capital stock or any rights, warrants or options to acquire any such shares, other than (A) the acquisition by the Company of shares of Company Common Stock in connection with the surrender of shares of Company Common Stock by holders of Company Stock Options in order to pay the exercise price of the Company Stock Options, (B) the withholding of shares of Company Common Stock to satisfy tax obligations with respect to awards granted pursuant to the Company Stock Plan, (C) the acquisition by the Company of Company Stock Options, Company Performance RSU Awards and Company RSU Awards in connection with the forfeiture of such awards, (D) the acquisition by the trustee of the Company 401(k) Plan of shares of Company Common Stock in order to satisfy participant elections under the Company 401(k) Plan, (E) the acquisition by the administrator of the Irish Share Scheme of shares of Company Common Stock in order to satisfy participant elections under the Irish Share Scheme, (F) the extinguishment of rights pursuant to Supplemental Plan Stock Equivalents in connection with the change in a participant’s investment election under the Supplemental Plan and (G) the extinguishment of rights pursuant to Company Stock Equivalents outstanding under the Specified Deferred Compensation Plans in connection with the cash settlement thereof; Table of Contents (iv) issue, deliver, transfer or sell any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, or any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based performance units, other than (A) upon the exercise of Company Stock Options outstanding on the date of this Agreement, in accordance with their present terms, (B) upon the vesting of Company RSU Awards and Performance RSU Awards outstanding on the date of this Agreement, in accordance with their present terms, (C) as required to comply with any Company Benefit Plan, Company Benefit Agreement or other written agreement as in effect on the date of this Agreement, (D) as set forth in Section 4.01(a)(iv) of the Company Disclosure Letter, (E) upon the conversion of the Convertible Notes outstanding on the date of this Agreement, in accordance with their present terms, (F) the issuance of Company Stock Equivalents pursuant to the Specified Deferred Compensation Plans and (G) the issuance of shares of Company Common Stock and rights to acquire such shares under the Irish Share Scheme; (iiv) amend or propose any change in (A) the Company shall not have amended Articles of Organization or the Company Bylaws or (B) the comparable organizational documents of any Subsidiary of the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iiivi) neither the Company nor any of its Subsidiaries shall have acquired merge or agreed to acquire by merging or consolidating consolidate with, or purchase, directly or indirectly, whether by purchasing purchase, Share Exchange, consolidation or acquisition of stock or assets or otherwise, an equity interest in or a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, any person or by any division or business thereof, or purchase any other mannerproperties or assets, or make any business investment, if the aggregate amount of the consideration paid or transferred (in each case, including the value of any corporationassumed liabilities) by the Company and its Subsidiaries in connection with all such transactions would exceed $20.0 million, partnership, association, joint venture, limited liability company or other entity or division thereof except than any such action (A) solely between or among the Company and its Subsidiaries or (B) in the ordinary course of business consistent with past practice (it being understood that any Share Exchange or consolidation, or the purchase of an equity interest in or a substantial portion of the assets of, any person or any division or business thereof is not in the ordinary course of business); Table of Contents (vii) sell, lease, license or otherwise dispose of any of its properties or assets (including capital stock of any Subsidiary of the Company) with a value in excess of $20.0 million (including the value of any assumed liabilities), other than (A) sales or other dispositions of inventory and other assets in the ordinary course of business consistent with past practice and (B) for transactions the licensing or sublicensing of Intellectual Property in the ordinary course of business consistent with past practice; (viii) pledge, encumber or otherwise subject to a Lien (other than a Permitted Lien) any of its properties or assets, other than, except with respect to joint ventures existing on capital stock of any Subsidiary of the date hereof valued at less than Company, in the ordinary course of business so long as the value of such property or asset does not exceed $10,000,000 10.0 million individually or (C) for transactions valued at less than $10,000,000 20.0 million in the aggregate; (ivix) none (A) incur any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company Propertiesor any of its Subsidiaries, Non-Controlling Properties guarantee any such indebtedness or Identified Assets shall have been sold any debt securities of another person or enter into any “keep well” or other agreement to maintain any financial statement condition of another person (collectively, “Indebtedness”) or materially alter, amend or modify any Contract in respect of Indebtedness, other than (1) Indebtedness incurred, assumed or otherwise transferredentered into in the ordinary course of business (including any borrowings under the Company’s existing credit facilities and in respect of letters of credit, except, (A) in each case in the ordinary course of business, ) and (2) Indebtedness incurred in connection with the refinancing of Indebtedness existing on the date of this Agreement (or incurred hereafter in accordance with clause (1) above) in connection with the scheduled expiration or maturity of the Company’s two short-term revolving credit facilities in Japan or (B) make or forgive any loans, guarantees or advances or make capital contributions to, or investments in, any other person, other than (1) to a wholly owned Subsidiary any of the Company Subsidiaries of the Company, (which Subsidiary shall be subject 2) pursuant to the same restrictions under this subsection clause (iv)), and vi) above or (C3) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales an amount not in excess of $20.0 million (in the case of capital contributions and investments) or transfers $5.0 million (in the case of Identified Assets to the extent the same shall have been consummated in accordance with the express terms loans, guarantees and conditions set forth in Article II hereofadvances); (vx) [Intentionally Omittedenter into or assume any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial instrument, contract or arrangement, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, (including for interest rate and foreign exchange rate hedging), except foreign exchange hedging on customary commercial terms in compliance with the Company’s hedging policies in effect on the date of this Agreement;]

Conduct of Business. The following shall be true in all material respects (a) Except as contemplated or permitted by this Agreement, as required by applicable Laws, as contemplated by any of the Closing Date: Except as otherwise expressly provided or permittedmatters set forth in Section 5.1(a) of the Company Disclosure Schedule, or contemplatedwith the prior written consent of Parent (which consent shall not be unreasonably withheld, by this Agreement delayed or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreementconditioned), during the period from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VII, (x) the Company shall, and shall cause each of its Subsidiaries to, use reasonable best efforts to conduct its business in all material respects in the Closingordinary course and to preserve intact its present lines of business, maintain existing levels of insurance, maintain its rights and franchises and preserve satisfactory relationships with Governmental Authorities, employees, customers and suppliers, and (y) the following actions Company shall not, and shall not have been taken without the prior written consent permit any of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):its Subsidiaries to: (i) the Company shall not have (A) declaredissue, set aside or paid any dividends onsell, or made grant any other distributions in respect of, any shares of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchasedany securities or rights convertible into, redeemed exchangeable or otherwise acquired (other than exercisable for, or evidencing the right to subscribe for any shares of its capital stock, or any rights, warrants or options to purchase any shares of its capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its capital stock, except as set forth on Section 7.1(r)(i5.1(a)(i) of the Company Disclosure Letter Schedule or pursuant to Company Benefit Plansthe issuance of True-Up Shares; (ii) redeem, purchase or otherwise acquire any of its outstanding shares of its capital stock stock, or any rights, warrants or options to acquire any such sharesshares of its capital stock, except (A) pursuant to Company Material Contracts set forth on Section 5.1(a)(ii) of the Company Disclosure Schedule in effect as of the date hereof or (B) in connection with withholding to satisfy Tax obligations with respect to Company RSUs, Company Performance Share Awards, Company Restricted Shares, Company Stock Options or Company Awards, acquisitions in connection with the forfeiture of equity awards, or acquisitions in connection with the settlement of Company RSUs, Company Performance Share Awards or Company Awards, vesting of Company Restricted Shares or the exercise of Company Stock Options; (iiiii) (A) declare, authorize, set aside for payment or pay any dividend on, or make any other distribution in respect of, any shares of its capital stock, other than (1) dividends paid by any Subsidiary of the Company shall to the Company or to any wholly-owned Subsidiary of the Company, (2) quarterly cash dividends with respect to the Company Common Stock not have amended to exceed the current annual per share dividend rate by more than $0.04 per year, with record dates and payment dates consistent with the Company’s certificate current dividend practice, or (3) a “stub period” dividend to holders of incorporation record of Company Common Stock as of immediately prior to the Effective Time equal to the product of (x) the number of days from the record date for payment of the last quarterly dividend paid by the Company prior to the Effective Time, multiplied by (y) a daily dividend rate determined by dividing the amount of the last quarterly dividend prior to the Effective Time by ninety-one (91) or bylaws other than to increase the authorized (B) adjust, split, combine, subdivide or reclassify any shares of its capital stock; (iiiiv) neither incur any Indebtedness in an outstanding principal amount in excess of $200,000,000 in the aggregate in any calendar year, except for Indebtedness (1) incurred to replace, renew, extend, refinance or refund any existing Indebtedness, in the same principal amount of such existing Indebtedness and upon the maturity of such existing Indebtedness, in each case on terms that can be redeemed or prepaid at any time upon payment of the outstanding principal amount plus accrued interest without any make-whole or similar prepayment penalty (2) for borrowed money incurred pursuant to (and up to the maximum amount permitted under) any Company Material Contract relating to Indebtedness as in effect as of the date of this Agreement, or (3) among the Company nor and any of its wholly-owned Subsidiaries or among any of such wholly-owned Subsidiaries; provided no such Indebtedness incurred after the date of this Agreement shall have acquired contain any term that would accelerate the payment thereof or agreed require its immediate repayment due to acquire the transactions contemplated by merging or consolidating withthis Agreement. (v) sell, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets dispose of, abandon, encumber, transfer, farm-out, lease or by license any other manner, any business of its properties or assets that are material to the Company or any corporationof its Subsidiaries, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) immaterial transactions in the ordinary course of business, (B) pursuant to Company Material Contracts in force on the date of this Agreement, (C) dispositions of inventory, equipment or other assets that are no longer used or useful in the conduct of the business of the Company or any of its Subsidiaries, (D) transfers among the Company and its Subsidiaries or (E) in respect of the items set forth in Section 5.1(f), below, or on Section 5.1(a)(v) of the Company Disclosure Schedule; (vi) make capital expenditures, except for transactions capital expenditures budgeted in the Company’s current long term plan that was made available to Parent prior to the date hereof, which such capital expenditures shall not be in excess of $375,000,000 in the aggregate for the Company and its Subsidiaries taken as a whole during any calendar year (plus a 10% variance), excluding any acquisition expenditures permitted pursuant to Section 5.1(a)(vii); (vii) make any acquisition (including by merger) of, or investments in, the capital stock, equity securities, membership interests or a material portion of the assets of any other Person, for consideration in excess of $50,000,000 in the aggregate in any calendar year, excluding any capital expenditures permitted pursuant to Section 5.1(a)(vi); (viii) (1) increase in any respect the compensation of any of its directors or employees (provided that payments of bonuses and other grants and awards made in the ordinary course of business consistent with past practice shall not constitute an increase in compensation), except (A) as required pursuant to applicable Law or the terms of Company Plans or other employee benefit plans or arrangements in effect on the date of this Agreement and (B) increases in salaries, wages and benefits of employees and director fees made in the ordinary course of business consistent with past practice or (2) enter into any new individual employment or severance agreement or materially amend any such agreement, other than entry into severance agreements with terminated employees in exchange for a release of claims and in the ordinary course of business consistent with past practices; (ix) adopt or amend any Company Plan or amend the Company’s Dividend Reinvestment and Stock Purchase Plan, as amended and restated August 1, 2011, except as required by Law or for immaterial or ministerial amendments; (x) make any material change to its methods of accounting, except as required by GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act, as required by a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization) or as required by applicable Law; (xi) amend the Company Charter Documents or organizational documents of any Subsidiary of the Company (except for immaterial or ministerial amendments); (xii) adopt a plan or agreement of complete or partial liquidation or dissolution or other re-organization; (xiii) enter into, modify or amend in any material respect, or terminate or waive any material right under, any Company Material Contract, except for (1) any new agreement, modification, amendment, termination or waiver in the ordinary course of business consistent with past practice or (2) a termination without material penalty to the Company or any of its Subsidiaries; (xiv) waive, release, assign, settle or compromise any material Claim against the Company or any of its Subsidiaries, other than waivers, releases, assignments, settlements or compromises that (A) with respect to joint ventures existing the payment of monetary damages, involve only the payment of monetary damages (i) equal to or less than the amounts specifically reserved with respect thereto on the date hereof valued at less than $10,000,000 consolidated financial statements of the Company included in the Company SEC Documents (including the notes thereto) or (Cii) for transactions valued at less than not exceeding $10,000,000 1,000,000 in the aggregateaggregate during any consecutive twelve-month period, and (B) except as contemplated by Section 5.9, with respect to any non-monetary terms and conditions therein, impose or require actions that would not reasonably be expected to be material and adverse to the Company and its Subsidiaries, taken as a whole; (ivxv) none enter into any new line of business or materially alter any existing lines of business; (xvi) make or change any material Tax election, change any Tax accounting period, adopt or change any material method of Tax accounting, amend any material Tax return, enter into any material closing agreement, settle or compromise any material Tax liability or obtain any material Tax ruling, in each case, except as required by applicable Law; (xvii) take any action that would reasonably be expected to prevent or materially impede, interfere with, hinder or delay the consummation by Parent or any of its Subsidiaries of the Transactions; (xviii) materially change or enter into any new information technology systems that are material to the Company Propertiesand its Subsidiaries (other than routine maintenance and upgrades to existing systems); or (xix) agree in writing to take any of the foregoing actions. (b) During the period from the date of this Agreement until the Effective Time, NonParent and Merger Sub shall not, and Parent shall cause its Subsidiaries not to, take any action that would reasonably be expected to prevent or materially impede, interfere with, or delay the consummation by Parent or Merger Sub of the Transactions. (c) Notwithstanding anything to the contrary herein, the Company may, and may cause any of its Subsidiaries to, take reasonable actions in compliance with applicable Law with respect to any operational emergencies (including any restoration measures in response to any hurricane, tornado, tsunami, flood, earthquake or other natural disaster or weather-Controlling Properties related event, circumstance or Identified Assets shall have been sold development), equipment failures, outages or otherwise transferredan immediate and material threat to the health or safety of natural Persons. (d) Between the date of this Agreement and the Effective Time, except, the Company and its Subsidiaries may (Ai) continue to make Regulatory Filings in the ordinary course of business, (Bincluding those filings described on Section 5.1(d) to a wholly owned Subsidiary of the Company Disclosure Schedule, (ii) respond (after reasonable consultation with Parent) to Regulatory Filings made by other parties in which Subsidiary shall be subject to the same restrictions under this subsection (iv))Company or one or more of its Subsidiaries is an interested party, and (Ciii) for sales take any other action contemplated by or described in any such state or federal filings or other transfers, the net proceeds of which shall not exceed $1,000,000,000 submissions filed or submitted in connection with such Regulatory Filings in the aggregateordinary course of business; provided, when taken together however, that Company shall keep Parent promptly informed of any material communications or meetings with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply any Governmental Authority with respect to sales rate cases and shall provide copies of any written communications or transfers materials, shall consult with Parent and give Parent a reasonable opportunity, within the time constraints imposed in such rate cases, to comment on material written communications or materials submitted to any Governmental Authority, in each case with respect to any rate cases, which Company shall consider in good faith, and at the request of Identified Assets Parent, provide Parent a reasonable opportunity to participate in any material meeting or communications related thereto. Parent shall have the opportunity to review and comment on all economic aspects of any rate case filing and shall have the right to approve (which approval shall not be unreasonably withheld, conditioned or delayed) any settlement of any rate case and rate case filing insofar as it would reasonably be expected to affect any material aspect of the Surviving Corporation or any of its Subsidiaries after the Effective Time. (e) Between the date of this Agreement and the Effective Time, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to sell, dispose of, abandon, transfer or otherwise convey those certain assets referenced on Section 5.1(e) of the Company Disclosure Schedule. The Company shall keep Parent reasonably informed as to the extent the same status of such transactions and Parent shall have been consummated in accordance the right to consent (not to be unreasonably withheld, conditioned or delayed) to any definitive documentation reflecting the foregoing. (f) Between the date of this Agreement and the Effective Time, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to ensure that its firm transportation and firm storage contracts are reviewed and renewed at levels that would maintain adequate peak-day gas supplies for customers. (g) Between the date of this Agreement and the Effective Time, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to cooperate and coordinate with Parent with respect to the express terms and conditions transition matters set forth in Article II hereof; (von Section 5.1(g) [Intentionally Omitted;]of the Company Disclosure Schedule.

Conduct of Business. The following From the date of this Agreement until the Effective Time, the Company shall be true and shall cause each Company Subsidiary to (i) conduct its business in all material respects as the ordinary course of business and (ii) use its reasonable best efforts to (A) keep available the services of the Closing Date: current officers, key employees and consultants of the Company and each Company Subsidiary and (B) to preserve the current relationships of the Company and each Company Subsidiary with each of the customers, suppliers and other Persons with whom the Company or any Company Subsidiary has business relations. Except as otherwise for matters expressly provided or permitted, or contemplated, contemplated by this Agreement or the Plan Summary Term Sheet (including, without limitation, disclosed in connection with implementing the matters contemplated by Article II hereof) or any order Section 6.01 of the Bankruptcy Court in effect on the date of the AgreementCompany Disclosure Schedule, during the period from the date of this Agreement to until the ClosingEffective Time, the following actions Company shall not, and shall not have been taken permit any Company Subsidiary to, do any of the following without the prior written consent of each Purchaser Parent (which consent such Purchaser agrees consent, except for clauses (a), (b) and (j) and, to the extent relating to any of the foregoing clauses, clause (u) below, shall not be unreasonably withheld, conditioned or delayed): (a) (i) the Company shall not have (A) declareddeclare, set aside aside, establish a record date for, or paid pay any dividends on, or made make any other distributions (whether payable in cash, stock property or a combination thereof) in respect of, any of the Company’s its capital stock (stock, other than dividends required and distributions by a wholly-owned domestic Company Subsidiary to retain REIT status its parent or enter into any agreement with respect to avoid the imposition voting of entity level taxesits capital stock, (Bii) split, combined combine, reclassify, or reclassified subdivide any of its capital stock or issued other Equity Interests, or authorized issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or other Equity Interests, (iii) purchase, redeem, or otherwise acquire or offer to acquire, directly or indirectly, any shares of capital stock of the Company or any Company Subsidiary or any other securities thereof or any rights, warrants or options to acquire any such sharesshares or other Equity Interests or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or dissolution; (b) issue, deliver, sell, pledge, transfer, encumber, grant or otherwise dispose, or authorize, propose or agree to the issuance, delivery, sale, pledge, transfer, encumbrance, grant or disposition of (i) any shares of its capital stock or other Equity Interests, (ii) the any Voting Company shall not have amended the Company’s certificate of incorporation Debt or bylaws other voting securities, (iii) any securities convertible into or exchangeable for, or any options, warrants, calls, commitments or rights to acquire, any such shares, voting securities or convertible or exchangeable securities or (iv) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than to increase issuances upon the authorized shares exercise of capital stockCompany Stock Options outstanding on the date of this Agreement and in accordance with their present terms; (iiic) neither the Company nor any amend its certificate of its Subsidiaries shall have acquired incorporation, bylaws or agreed other organizational documents; (d) acquire or agree to acquire by merging or consolidating with, or or, by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity Person or division thereof or, other than in the ordinary course of business, acquire or agree to acquire any other assets; (e) except as required pursuant to existing agreements or Company Plans, (i) grant to any employee, director or other service provider of the Company or any Company Subsidiary any increase in compensation or employee benefits (other than in the ordinary course of business), (ii) grant to any present or former employee, officer, director or other service provider of the Company or any Company Subsidiary any severance or termination pay, or (iii) enter into or amend any employment, consulting, indemnification, severance or termination agreement with any such present or former employee, officer, director or other service provider; (f) (i) establish, adopt, enter into or amend in any material respect any Company Plan except as required by applicable Law, (ii) except as required under the term of any Company Plan, take any action to accelerate any material rights or benefits under any Company Plan, (iii) loan or advance money or other property to any present or former employee, director or other service provider of the Company or any Company Subsidiary, (iv) grant or announce any new, or amend any existing, Company Stock Option or other incentive award or enter into any agreement under which any Company Stock Option or other incentive award would be required to be issued, or (v) hire any new employees, unless such hiring is in the ordinary course of business consistent with past practice and is with respect to employees having an annual base salary and incentive compensation opportunity not to exceed $100,000; (g) make any change in accounting methods, principles or practices, except insofar as may be required by GAAP or as may be required as a result of a change in applicable Law; (h) make or agree to make any new capital expenditure or expenditures that are, in the aggregate, in excess of $1,500,000 per fiscal quarter; (i) change any method of material Tax accounting, failure to pay Taxes when they become due and payable, make or change any material Tax election, file any material amended Tax Return settle or compromise any material Tax liability or refund, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes (other than extensions or waivers agreed in the ordinary course of business), or enter into any closing agreement with respect to any material Tax or surrender any material right to claim a Tax refund; (j) redeem, repurchase, prepay, defease, cancel, incur or otherwise acquire, or modify the terms of any Indebtedness other than indebtedness with respect to borrowed money and debt securities in the aggregate amount of up to $250,000; (k) grant any Lien on any of its assets, other than Liens granted in connection with any indebtedness permitted under this Section 6.01; (l) sell, transfer, lease, license, sublicense, abandon, assign or otherwise dispose of (including, by merger, consolidation, or sale of stock or assets) any entity, business, assets, rights or properties (including Intellectual Property Rights) of the Company or any Company Subsidiary having a current value in excess of $500,000 in the aggregate (other than non-exclusive licenses in the ordinary course of business); (m) enter into any new business segment; (n) pay, discharge, settle or satisfy any material claims or obligations (absolute, accrued, contingent or otherwise), other than (i) performance of contractual obligations in accordance with their terms, (ii) payment, discharge, settlement or satisfaction in the ordinary course of business or (iii) payment, discharge, settlement or satisfaction in accordance with their terms, of claims, liabilities or obligations that have been (x) disclosed in the most recent financial statements of the Company filed with the SEC immediately prior to the date hereof to the extent of such disclosure or (y) incurred since the date of such financial statements in the ordinary course of business; (o) settle, release, waive or compromise any pending or threatened Proceeding of or against the Company or any of the Company Subsidiaries (A) for an amount in excess of $250,000 in the aggregate, (B) entailing the incurrence of (x) any obligation or liability of the Company in excess of such amount, including costs or revenue reductions, or (y) obligations that would impose any material restrictions on the business or operations of the Company or any of the Company Subsidiaries, or (C) that is brought by any current, former or purported holder of any capital stock or debt securities of the Company or any Company Subsidiary relating to the transactions contemplated by this Agreement; (p) other than in the ordinary course of business, (A) enter into, terminate or materially amend or modify any Material Contract or Contract that, if in effect on the date hereof, would have been a Material Contract, or (B) waive any material default under, or release, settle or compromise any material claim against the Company or liability or obligation owing to the Company under any Material Contract; (q) voluntarily cancel, terminate or fail to renew (in a form and amount consistent with past practice) material insurance policies covering the Company and the Company Subsidiaries and their respective properties, assets and businesses; (r) adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary (other than the Merger or any merger or consolidation among wholly-owned Subsidiaries of the Company); (s) establish, adopt, enter into or amend in any material respect any Associate Compensation Plan; (t) make any loans or advances (excluding normal advance commission payments) to (i) any employee, director, or officer, or (ii) any sales associate, or other Person that sells membership interests for transactions or on behalf of the Company or any Company Subsidiary; or (u) authorize any of, or commit or agree to take any of, the foregoing actions or enter into any letter of intent (binding or non-binding) or similar agreement or arrangement with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none any of the Company Propertiesforegoing actions. Notwithstanding the foregoing or any other provision of this Agreement, Non-Controlling Properties or Identified Assets nothing shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of prevent the Company (which Subsidiary shall be subject to from engaging in or causing intercompany transactions involving the same restrictions under this subsection (iv)), and (C) for sales or other transfers, Company and/or the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]Subsidiaries.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, contemplated by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order as set forth on Section 6.1 of the Bankruptcy Court in effect on Company Disclosure Schedule, during the date period from April 26, 2000 and continuing until the earlier of the Agreementtermination of this Agreement in accordance with Section 8.1 or the Effective Time, Company agrees as to itself and its Subsidiaries (except to the extent that Parent shall otherwise consent in writing) to carry on its business in the usual, regular and ordinary course in substantially the same manner as previously conducted, to pay its debts and Taxes when due subject to good faith disputes over such debts or Taxes, to pay or perform its other obligations when due, and, to the extent consistent with such business, use all reasonable efforts consistent with past practices and policies to (i) preserve intact its present business organization, (ii) keep available the services of its present officers and key employees and (iii) preserve its relationships with customers, suppliers, distributors, and others having business dealings with it. Notwithstanding the foregoing, except as set forth on Section 6.1 of the Company Disclosure Schedule, during the period from the date of this Agreement to and continuing until the Closingearlier of the termination of this Agreement or the Effective Time, the following actions Company shall not have been taken (and shall not permit any of its Subsidiaries to), without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheldParent, conditioned or delayed):do any of the following: (ia) accelerate, amend or change the Company shall not have period of exercisability of options or restricted stock granted under any Stock Plan or authorize cash payments in exchange for any options granted under any such Stock Plan, except as required by the terms of such Stock Plan or any related agreements in effect as of the date of this Agreement; (Ab) declared, set aside declare or paid pay any dividends on, on or made make any other distributions (whether in cash, stock or property) in respect of, of any of the Company’s its capital stock (other than dividends required to retain REIT status stock, or to avoid the imposition of entity level taxes, (B) split, combined combine or reclassified reclassify any of its capital stock or issued issue or authorized authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (C) purchased, redeemed purchase or otherwise acquired acquire, directly or indirectly, any shares of its capital stock, except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service to such party; (other than as set forth on Section 7.1(r)(ic) of issue, deliver or sell, or authorize or propose the Company Disclosure Letter issuance, delivery or pursuant to Company Benefit Plans) sale of, any shares of its capital stock or any securities convertible into or exchangeable for shares of its capital stock, or subscriptions, rights, warrants or options to acquire acquire, or other agreements or commitments of any character obligating it to issue, any such sharesshares or other convertible securities, other than the issuance of shares of Company Common Stock pursuant to the exercise of options or warrants outstanding on the date of this Agreement; (iid) the Company shall not have amended the Company’s certificate of incorporation acquire or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests equity interest in, or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company partnership or other entity business organization or division thereof except division, or otherwise acquire or agree to acquire any assets (A) other than inventory and other items in the ordinary course of business), (B) except for transactions with respect to joint ventures existing on the date hereof valued at less any such acquisitions involving aggregate consideration of not more than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate50,000; (ive) none of the Company Propertiessell, Non-Controlling Properties or Identified Assets shall have been sold lease, license or otherwise transferreddispose of any of its material properties or assets, except, (A) except for transactions in the ordinary course of business; PROVIDED, HOWEVER, that in no event shall Company enter into any agreement, option or other arrangement (Bincluding, without limitation, any joint venture) to involving the licensing of its name in any foreign country, except for transactions in the ordinary course of business; (f) enter into any material agreement or other arrangement which would constitute a wholly owned Subsidiary Material Contract if Company or any of its Subsidiaries were a party thereto as of the Company (date of this Agreement, which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales agreements or other transfersarrangements obligate the Company to pay more than $50,000 thereunder, the net proceeds of which shall not exceed individually, or more than $1,000,000,000 100,000 in the aggregate; PROVIDED, when taken together with all such sales and other transfers of HOWEVER, Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect (and shall not permit any of its Subsidiaries to) enter into any retail store leases without the prior written consent of Parent, such consent not to sales be unreasonably withheld; (g) incur inventory other than in the ordinary course of business; (i) increase or transfers agree to increase the compensation payable or to become payable to its directors, officers, employees or consultants, except for increases in salary or wages of Identified Assets to the extent the same shall have been consummated employees in accordance with past practices, (ii) grant any additional severance or termination pay to, or enter into any employment or severance agreements with, any consultants, employees, officers or directors, (iii) enter into any collective bargaining agreement (other than as required by law or extensions to existing agreements in the express terms ordinary course of business), or (iv) establish, adopt, enter into or amend, in any manner materially adverse to the Company or its Subsidiaries, any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, trust, fund, policy or arrangement for the benefit of any directors, officers, employees or consultants; (i) amend or propose to amend its Articles of Incorporation or Bylaws; (j) incur any indebtedness for borrowed money other than intercompany indebtedness and conditions indebtedness incurred in the ordinary course of business; PROVIDED, HOWEVER, in no event shall Company or any of its Subsidiaries incur any indebtedness for borrowed money in excess of $50,000 in the aggregate without the written consent of Parent; (k) take any action that would or is reasonably likely to result in a breach of any covenant, agreement, representation or warranty set forth in Article II hereofthis Agreement that is qualified as to materiality; or take any action that would or is reasonably likely to result in a breach of any covenant, agreement, representation or warranty set forth in this Agreement that is not so qualified, which breach is reasonably likely to have a Company Material Adverse Effect; (vl) [Intentionally Omittedmake or rescind any material express or deemed election relating to Taxes, settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or change any of its methods of reporting income or deductions for federal income Tax purposes from those employed in the preparation of its federal income tax return for the taxable year ended March 28, 1999, except as may be required by applicable law;] (m) settle any material litigation, such consent of Parent not to be unreasonably withheld; (n) take, or agree in writing or otherwise to take, any of the actions described in Sections 6.1(a) through (m) above.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: (a) Except as otherwise expressly provided or permitted, or contemplated, contemplated by this Agreement or the Plan Summary Term Sheet (includingas required by Applicable Law, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from between the date of this Agreement to and the ClosingClosing Date, the following actions business of the Group Companies shall not have been taken be conducted in the usual, regular, and ordinary course of business in substantially the same manner as heretofore conducted. (b) Without limiting the generality of the foregoing and in furtherance thereof, between the date of this Agreement and the Closing Date, without the prior written consent of each Purchaser (which consent such Purchaser agrees the Purchaser, none of the Group Companies shall not be unreasonably withheld, conditioned or delayed):engage in: (i) any action that authorizes, creates, issues, increases or decreases (including through altering, reorganizing, reclassifying or otherwise recapitalizing any existing Equity Securities) the Company shall not have (A) declaredauthorized number of any Equity Securities having rights, set aside preferences or paid any dividends onprivileges senior to or on parity with the Series E Shares, or made any other distributions in respect of, any increase the authorized number of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such sharesSeries E Shares; (ii) the Company shall not have amended the Company’s certificate any purchase, repurchase, redemption or retirement of incorporation or bylaws other than to increase the authorized shares of capital stockany Equity Securities; (iii) neither the Company nor any amendment or modification to or waiver under any of its Subsidiaries shall have acquired the Charter Documents; (iv) any declaration, set aside or agreed to acquire by merging payment of a dividend or consolidating withother distribution, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets adoption of, or by any change to, the dividend policy; (v) adoption, amendment or termination of the ESOP or any other mannerequity incentive, purchase or participation plan for the benefit of employees, officers, directors, contractors, advisors or consultants; (vi) any business transaction in excess of US$150,000 or a series of transactions in the aggregate in excess of US$400,000 in a six (6) month period with a Related Party or member of such Related Party’s immediate family, or any corporation, partnership, association, joint venture, limited liability company company, partnership or other entity in which such Related Party is an officer, director or division thereof except partner, or in which such Related Party has significant ownership interests or otherwise Controls (Afor the avoidance of doubt, other than the transactions with the Purchaser and its Affiliates); (vii) any sale, transfer, license or other disposal of, or the incurrence of any lien on, any substantial part of its assets (including intellectual properties) of any Group Company or the grant of license of any intellectual property of any Group Company to a third party outside the ordinary course of business; (viii) other than any non-exclusive license granted in the ordinary course of business, (B) for transactions with respect to joint ventures existing on any sale, transfer, license, or other disposal of, or the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregateincurrence of any lien on, any Proprietary Assets; (ivix) none the commencement of or consent to any proceeding seeking (i) to adjudicate it as bankrupt or insolvent, (ii) liquidation, winding up, dissolution, reorganization, or other arrangement under law relating to bankruptcy, insolvency or reorganization or relief of debtors, or (iii) the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property; (x) any change of the size or composition of its board of directors; (xi) any change in the equity ownership of any Domestic Company Propertiesor any amendment or modification to or waiver under any of the Control Documents; (xii) any investment in, Non-Controlling Properties or Identified Assets shall have been sold divestiture or otherwise transferredsale of an interest in a Subsidiary of the Company, except, partnership or joint venture; (Axiii) any Trade Sale; (xiv) incurrence of indebtedness in a single transaction or a series of related transactions in excess of US$2,500,000 other than in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (vxv) [Intentionally Omittedextension, cancellation or waiver by any Group Company of any loan or financial assistance to any third party or guarantee for indebtedness in excess of US$750,000;] (xvi) purchase, mortgage, pledge, lease or disposal of any business and/or assets in a single transactions or a series of related transactions valued in excess of US$750,000 in the aggregate by the Group Companies; (xvii) investment in any other company in excess of US$7,500,000 in the aggregate by the Group Companies; (xviii) approval of, or any deviation from or amendment of, the annual budget or the business and financial plan; (xix) appointment or removal of its executive officers; (xx) any increase in compensation of any employee of any Group Company with monthly salary of at least US$25,000 by more than fifty percent (50%); (xxi) appointment or removal of auditors, or the change of the term of the fiscal year; (xxii) any material change to the business scope or nature of business, or cessation of any business line; (xxiii) adoption of or change to, a significant Tax or accounting practice or policy or any internal financial controls and authorization policies, or the making of any significant Tax or accounting election; or (xxiv) any disposal of any of the External Companies and their respective assets, properties, income, earnings and liabilities.

Conduct of Business. The following shall be true Since December 31, 2004, but except, in all material respects as of each case, (1) with respect to the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, transactions contemplated by this Agreement and the Ancillary Agreements, and (2) as set forth in the Schedules and their Appendices, the business and operations of the Company have been conducted in the Ordinary Course of Business and there has not been any adverse change in the operation of the business or the Plan Summary Term Sheet performance or financial condition of the Company outside of the Ordinary Course of Business, and the Company has not: (a) borrowed any amount or incurred or become subject to any liability except (i) liabilities incurred in the Ordinary Course of Business, (ii) liabilities under Contracts entered into in the Ordinary Course of Business and (iii) borrowings under lines of credit existing on such date; (b) sold, assigned, licensed, leased or transferred (including, without limitation, in connection transfers with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreementemployees, during the period from the date of this Agreement to the ClosingAffiliates, the following actions shall not have been taken without Shareholders or their respective Family Affiliates) any assets or properties except in the prior written consent Ordinary Course of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheldBusiness, conditioned or delayed):cancelled any debts or claims other than in the Ordinary Course of Business; (ic) waived any rights of value or suffered any losses other than in the Company shall not have Ordinary Course of Business; (Ad) declared, set aside declared or paid any dividends on, or made any other distributions in with respect of, to any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any shares of its capital stock or issued redeemed or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed directly or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) indirectly, any shares of its capital stock or any rights, warrants or options to acquire any such sharesoptions; (iie) the Company shall not have amended the Company’s certificate of incorporation taken any other action or bylaws entered into any other transaction (including any transactions with employees, Affiliates, shareholders or their respective Family Affiliates) other than to increase in the authorized shares Ordinary Course of capital stockBusiness or arising out of the transactions contemplated by this Agreement and the Ancillary Agreements; (f) (i) increased the salary, wages or other compensation rates of any officer, employee, director or consultant except in the Ordinary Course of Business, and except with respect to the transactions contemplated by this Agreement and the Ancillary Agreements (ii) made or granted any increase in any Employee Plan, or amended or terminated any existing Employee Plan, or adopted any new Employee Plan or (iii) neither made any commitment or incurred any liability to any labor organization; (g) made any capital expenditures or commitments therefor other than capital expenditures or commitments for individual items not exceeding $1,500 per item; (h) made any change in accounting or Tax principles, practices or policies from those utilized in the Company nor preparation of the Financial Statements; (i) made any write-off or write-down of or made any determination to write-off or write-down any of its Subsidiaries shall have acquired assets and properties; (j) made any change in its general pricing practices or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business policies or any corporationchange in its credit or allowance practices or policies; (k) except to the extent reflected in Schedule 4.15, partnershipentered into any amendment, associationmodification, joint venture, limited liability company termination (partial or other entity complete) or division thereof except (A) in the ordinary course of business, (B) for transactions granted any waiver under or given any consent with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 any Contract that is required to be disclosed in the aggregateSchedules to this Agreement; (ivl) none of the Company Properties, Non-Controlling Properties commenced or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course terminated any line of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof;or (vm) [Intentionally Omitted;]received written notice from any customer or supplier that such customer or supplier has ceased, may cease or will cease to do business with it.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided contemplated hereby or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, as set forth in connection with implementing the matters contemplated by Article II hereof) or any order Schedule 5 of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the ClosingDisclosure Schedule, the following actions Company covenants and agrees that, unless Parent shall not have been taken without the prior written consent of each Purchaser otherwise agree in writing (which consent such Purchaser agrees shall not unreasonably be unreasonably withheld), conditioned prior to the Effective Time: (a) The business of the Company and its subsidiaries shall be conducted only in, and the Company and its subsidiaries shall not take any action except in, the ordinary and usual course of business and in a manner consistent with past practice, and the Company shall use its reasonable best efforts to maintain and preserve intact its and its subsidiaries' business organization, assets, employees, officers and consultants and advantageous business relationships. (b) Neither the Company nor any of its subsidiaries shall directly or delayed): indirectly do any of the following: (i) except in the ordinary course of business, sell, pledge, dispose of or encumber any assets of the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, of any of the Company’s capital stock its subsidiaries; (other than dividends required to retain REIT status ii) amend its charter or to avoid the imposition of entity level taxes, by-laws or similar organizational documents; (Biii) split, combined combine or reclassified reclassify any shares of its capital stock or issued declare, set aside, make or authorized pay any dividend or distribution payable in cash, stock, property or otherwise with respect to any of its capital stock; (iv) redeem, purchase or otherwise acquire or offer to redeem, purchase or otherwise acquire any capital stock of the issuance Company or its subsidiaries; (v) adopt a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or other reorganization of the Company; or (vi) authorize or propose any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (c) Neither the Company nor any of its subsidiaries shall, directly or indirectly, (i) except for Shares issuable upon exercise of options outstanding under the Stock Plans on the date hereof, issue, deliver, sell, pledge, dispose of or encumber, or authorize, propose or agree to the issuance, sale, pledge, disposition or encumbrance of, any shares of, or any options, warrants or rights of any kind to acquire any shares of or any securities convertible into or exchangeable or exercisable for any shares of, its capital stock of any class or any other securities in respect of, in lieu of of, or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth Shares outstanding on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; date hereof; (ii) the Company shall not have amended the Company’s certificate acquire (by merger, consolidation or acquisition of incorporation stock or bylaws assets) any corporation, partnership or other than to increase the authorized shares of capital stock; business organization or division thereof; (iii) except in an amount not in excess of $12,000,000, and other than drawdowns on the Company's line of credit that do not result in its indebtedness increasing by more than $12,000,000 over the amount thereof on the date of this Agreement, incur any indebtedness or issue any debt securities or assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any other individual or entity, or make any loans or advances, or capital contributions to, or investment in, any other person or modify any indebtedness or other liability; (iv) change the capitalization of the Company; (v) except in the ordinary course, change any assumption underlying, or method of calculating, any bad debt, contingency or other reserve; (vi) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or as required by applicable law; (vii) waive, release, grant or transfer any rights of value or modify or change in any material respect any existing license, lease, contract or other document, other than in the ordinary course of business consistent with past practice; (viii) enter into any contract or agreement other than in the ordinary course of business consistent with past practice; or (ix) authorize 16 20 any capital expenditures which are, in the aggregate, in excess of $2.0 million for the Company and its subsidiaries taken as a whole. (d) Subject to Section 2.8, neither the Company nor any of its Subsidiaries subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) establish, adopt, amend or terminate (except as may be required by law) any Employee Benefit Plan or any other bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment, collective bargaining, fringe benefit, change of control, incentive, stock purchase, severance, termination or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any employee or any officer or director or former employee; (B) increase the compensation or benefits of any of its directors, officers or employees, except for increases in compensation for officers and employees of the Company, in the ordinary course of business and in a manner consistent with past practice; or (C) grant any severance, termination pay or fringe benefits not required to be paid under existing agreements or policies, including, without limitation, amounts available in the three sale incentive bonus pools described in the Disclosure Schedule. (e) Except as contemplated in connection with this Agreement, neither the Company nor any of its subsidiaries shall make any tax election, change any method of tax accounting, enter into or amend any tax sharing, allocation or indemnity agreement (whether written or unwritten) or, except in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 settle or (C) for transactions valued at less than $10,000,000 in the aggregate;compromise any federal, state, local or foreign income tax liability. (ivf) none Neither the Company nor any of its subsidiaries shall permit any insurance policy naming it as beneficiary or a loss payee to be cancelled or terminated without notice to Parent. (g) Neither the Company nor any of its subsidiaries shall, except as may be required as a result of a change in law or in generally accepted accounting principles, change any of the accounting practices or principles used by it. (h) Neither the Company Propertiesnor any of its subsidiaries shall agree, Non-Controlling Properties in writing or Identified Assets shall have been sold or otherwise transferredotherwise, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary take any of the Company (foregoing actions or any action which Subsidiary shall be subject would make any representation or warranty in Article 3 hereof untrue or incorrect so as to result in a Material Adverse Effect or would result in any of the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof;Annex I not being satisfied. (vi) [Intentionally Omitted;]Neither the Company nor any of its subsidiaries shall authorize any of the foregoing, or enter into or modify any contract, agreement, commitment or arrangement to do any of the foregoing. 6.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Article VI or the Effective Time, each of the Company and ACI agrees as to itself and its Subsidiaries (except to the Closingextent that the other shall otherwise consent in writing), to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to the end that its goodwill and ongoing business be substantially unimpaired at the Effective Time. Except as expressly contemplated by this Agreement, and not in limitation of the foregoing, during the aforesaid period each of the Company and ACI shall (and shall cause its Subsidiaries to), except as approved in writing by the other: (a) preserve and maintain its corporate existence and all of its rights, privileges and franchises reasonably necessary or desirable in the normal conduct of its business; (b) not acquire any stock or other interest in, nor (except in the ordinary course of business) purchase any assets of, any corporation, partnership, association or other business organization or entity or any division thereof (except any stock or assets distributed to it or any of its Subsidiaries as part of any bankruptcy or other creditor settlement or pursuant to a plan of reorganization), nor agree to do any of the foregoing; (c) not sell, lease, assign, transfer or otherwise dispose of any of its assets (including, without limitation, patents, trade secrets or licenses), nor create any mortgage, security interest or other lien on any of its assets, except as permitted by this Agreement or in the ordinary course of business and except that it and each of its Subsidiaries may sell or otherwise dispose of any assets which are held for disposition as of the date hereof or are obsolete; (d) not incur any indebtedness for borrowed money or any obligation under any guarantee or "make whole" or capital support agreement or arrangement, other than as a result of borrowings or drawdowns, the following actions shall issuance of letters of credit for its account and the incurrence of interest, letter of credit reimbursement obligations and other obligations incurred in the ordinary course of business consistent with past practice; (e) not have been taken without (i) alter, amend or repeal any provision of its Certificate of Incorporation or Bylaws, (ii) change the number of its directors (other than as a result of the death, retirement or resignation of a director), (iii) except in the ordinary course of its business, form or acquire any Subsidiaries not existing as of the date of this Agreement, (iv) except in the ordinary course of its business or as required to obtain any consent, enter into, modify or terminate any material contracts or agreement to which it is a party or agree to do so, (v) modify any Employment Agreement, or (vi) declare, pay, commit to or incur any obligation of any kind for the payment of any bonus, additional salary or compensation or retirement, termination, welfare or severance benefits payable or to become payable to any of its employees or such other persons, except in any such case for obligations incurred in the ordinary course of business and consistent with past practice and such matters as are required pursuant to the terms of any existing Employment Agreement or Benefit Plan; (f) maintain its books, accounts and records in the usual, ordinary and regular manner and in material compliance with all applicable laws and with its methods and policies of accounting in effect on the date hereof; (g) pay and discharge all material federal, state, local and foreign taxes imposed upon it or upon its income or profits, or upon any property belonging to it, prior written consent to the date on which penalties attach thereto, except to the extent that it is currently contesting, in good faith and by proper proceedings, the payment of each Purchaser such taxes and it maintains appropriate reserves with respect thereto; (h) use all reasonable efforts to meet its obligations under all material contracts, agreements and instruments to which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):it is a party; (i) use all reasonable efforts to maintain its business and assets in good repair, order and condition, reasonable wear and tear excepted, and to maintain insurance upon such business and assets at least comparable in amount and kind to that in effect on the Company shall date hereof; (j) use all reasonable efforts to maintain its present relationships and goodwill with suppliers, brokers, manufacturers, representatives, distributors, customers and others having business relations with it (PROVIDED that it may pursue overdue accounts and otherwise exercise lawful remedies in its customary fashion); (k) carry on and operate its business in, and only in, the usual, regular and ordinary course in substantially the same manner as heretofore conducted and use all reasonable efforts to cause its representations and warranties set forth in this Agreement and in any Ancillary Document to be true and correct, in all respects, on and as of the Effective Time, subject only to changes in the ordinary course of business; (l) not have (A) declareddeclare, set aside aside, make or paid pay any dividends on, or made any other distributions with respect to its capital stock except (in respect of, any the case of ACI) for regular cash dividends not to exceed $0.115 per share of ACI Common Stock per quarter and regular cash dividends on shares of ACI Class B Preferred Stock and shares of ACI Class C Common Stock and except (in the case of the Company’s capital stock (other than ) for cash dividends required on Company Common Stock in an aggregate amount not to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) exceed 108.33% of the Company Disclosure Letter aggregate cash dividends paid on ACI Common Stock, ACI Class B Preferred Stock and ACI Class C Preferred Stock after December 31, 1996; or pursuant to Company Benefit Plans) purchase or redeem any shares of its capital stock or any rights, warrants or options agree to acquire take any such sharesaction; (iim) the Company shall not have amended the Company’s certificate of incorporation authorize or bylaws other make any capital expenditure otherwise than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (ivn) none not increase the number of the Company Propertiesshares authorized or issued and outstanding of its capital stock, Non-Controlling Properties nor grant or Identified Assets shall have been sold make any pledge, option, warrant, call, commitment, right or otherwise transferredagreement of any character relating to its capital stock, nor issue or sell any shares of its capital stock or securities convertible into such capital stock, or any bonds, promissory notes, debentures or other corporate securities or become obligated so to sell or issue any such securities or obligations, except, (A) in any case, for the ordinary course issuance of business, (B) to a wholly owned Subsidiary shares of ACI Common Stock upon conversion of shares of ACI Class B Preferred Stock or ACI Class C Preferred Stock and upon exercise of options outstanding under the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]ACI Stock Plans.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereofa) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement Prior to the Closing, and except as otherwise contemplated by this Agreement, set forth in Section 5.3 of the following actions shall not have been taken without the prior written consent of each Purchaser Seller Disclosure Letter or consented to or approved by Buyer (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned withheld or delayed), each Seller covenants and agrees that it shall operate, and shall cause the Acquired Companies and the Satair JV to operate, the Business only in the ordinary course and use commercially reasonable efforts to preserve the properties, business, present employment relationships with officers and key employees of the Business and commercial relationships with suppliers and customers of the Business, and shall not, other than in the ordinary course of business, undertake or cause to be undertaken any of the following (in the case of Sellers, solely with respect to the Business): (i) the Company shall not have (A) declaredauthorize, set aside propose or paid any dividends onannounce an intention to authorize or propose, or made enter into agreements with respect to, any mergers, consolidations or business combinations or material acquisitions of assets (other distributions than purchase of inventory in respect the ordinary course of business) or securities; (ii) sell, lease, license, transfer or exchange or otherwise dispose of, any of the Company’s capital stock Business Assets, except (A) for fair consideration in the ordinary course of business or (B) pursuant to existing agreements in effect prior to the execution of this Agreement; (iii) create any Encumbrance (other than dividends required a Permitted Encumbrance) on any of the Business Assets, incur any Indebtedness or make any loans, advances or capital contributions to, or investments in, any other Person (other than in the Acquired Companies or trade credit extensions in the ordinary course of business); (iv) enter into any new Contract that would be (A) a Real Property Lease with annual rental payments in excess of $100,000 or (B) a Significant Contract pursuant to retain REIT status Section 3.9(a)(xi) or 3.9(a)(xii), in each case under the definitions herein if entered into prior to avoid the imposition date hereof, or modify, amend, renew, cancel, terminate, transfer, assign or waive any rights under any such type of entity level taxesContract referred to in the foregoing clauses (A) and (B); (v) enter into any leases of personal property or any renewals thereof involving a rental obligation exceeding $100,000 per year in the aggregate; (vi) materially increase the rate of compensation, severance or other benefits payable to the Transferred Employees, in the aggregate, other than (A) increases in accordance with past practices, (B) increases required by Law, existing employment agreements or collective bargaining agreements, or (C) any amounts included in the Sale Bonus Amount; (vii) adopt or enter into any new, or modify, amend or terminate any existing, collective bargaining agreement, Foreign Plan or other policy, arrangement or employment terms for the benefit of any current or former directors, officers or employees or any of their beneficiaries, other than as required by Law or existing employment agreements or collective bargaining agreements; (viii) make any new commitment or increase any previous commitment for capital expenditures for (A) any of the Telair Europe Business, the Telair U.S. Business and the Nordisk Business, individually, in excess of $200,000 or (B) the Business in an aggregate amount in excess of $500,000 for all such capital expenditures; (ix) make any material change in any accounting method, practice or principle or in any system of internal accounting controls or any of its methods of reporting income, deductions or other material items for income Tax purposes, other than as required by applicable accounting or regulatory authority; (x) split, combined combine or reclassified reclassify the Shares or any of its capital stock (or issued other equity equivalents) or authorized issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for its capital stockfor, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock (or other equity equivalents); (xi) issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of the Acquired Companies or any rights, warrants securities convertible into or options to acquire exchangeable for any such shares; (iixii) adopt any amendments to the Company shall not have amended organizational documents of the Company’s certificate of incorporation Acquired Companies or bylaws other than to increase the authorized shares of capital stockSatair JV; (iiixiii) neither form or cause to be formed any Subsidiary; (xiv) except with respect to the Company nor National Air Cargo Crash, settle, waive or release any of its Subsidiaries shall have acquired action, suit or agreed to acquire by merging proceeding (or consolidating withseries thereof), or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except than (A) in the ordinary course of business, business consistent with past practice and (B) for transactions involving solely money damages of less than $100,000; (xv) take any action to terminate any current or former occurrence-based insurance policies; or (xvi) authorize, commit to or enter into any contract, agreement, commitment or arrangement with respect to joint ventures existing on any of the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate;foregoing. (ivb) none of Nothing in this Agreement shall diminish Sellers’ sole title to the Company Properties, Non-Controlling Properties Business or Identified Assets shall have been sold or otherwise transferred, except, (A) be construed to limit Sellers’ discretion to operate the Business in the ordinary course course, or shall give Buyer or German Buyer any ownership rights to the Business Assets, before the Effective Time. Subject to Section 2.2, each of businessBuyer and German Buyer acknowledges that Sellers, (B) to the Acquired Companies and the Joint Ventures may transfer, by way of a wholly owned Subsidiary dividend or otherwise, the cash, cash equivalents, marketable securities and other financial instruments described in Section 2.2 as well as any Excluded Assets out of the Company (which Subsidiary shall be subject Business prior to the same restrictions under this subsection (iv))Closing and, and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided it is intended that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent practicable, such items will be transferred out of the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]Business by way of dividend or otherwise prior to Closing.

Conduct of Business. The following shall be true in all material respects as of From the date hereof to the Closing Date: Except , the Company shall, and shall cause each Subsidiary to, carry on its business in the ordinary course consistent with past practice and use reasonable efforts to preserve intact its current business organization, keep available the services of its current officers and employees and preserve its relationships with customers, suppliers, licensors, licensees and others having significant business dealings with it. Without limiting the generality of the foregoing, from the date hereof to the Closing Date, the Company shall not and shall cause each Subsidiary not to (except as otherwise expressly provided or permitted, or contemplated, permitted by this Agreement or with the Plan Summary Term Sheet (includingInvestor's consent, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall will not be unreasonably withheld, conditioned or delayed): (i) the Company shall not have (A) declareddeclare, set aside or paid pay any dividends on, or made make any other distributions in respect of, any of the Company’s its capital stock (other than cash dividends required and distributions by a wholly-owned Subsidiary to retain REIT status the Company or to avoid a Subsidiary all of the imposition capital stock of entity level taxeswhich is owned directly or indirectly by the Company), (Bii) split, combined combine or reclassified reclassify any of its capital stock or issued issue or authorized authorize the issuance of any other securities in respect of, in lieu of or in substitution for Shares of its capital stock, or (Ciii) purchasedpurchase, redeemed redeem or otherwise acquired (other than as set forth on Section 7.1(r)(i) acquire any Shares or any capital stock of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock other securities thereof or any rights, warrants or options to acquire any such sharesshares or other securities; (iib) the Company shall not have amended the Company’s certificate issue, deliver, sell, pledge or otherwise encumber any shares of incorporation its capital stock, any other voting securities or bylaws any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, including any issuance of securities in any mergers or acquisitions (whether pursuant to any existing earn-outs or otherwise) other than to increase the authorized shares of capital stockPermitted Securities; (iiic) neither the Company nor any of amend its Subsidiaries shall have acquired Organizational Documents; (d) acquire or agreed agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, assets or other ownership interests in, or substantial portion of assets stock of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company person or (ii) any assets except for the purchase of equipment or other entity or division thereof except (A) assets in the ordinary course of business, (B) for transactions with respect including, without the Investor's consent, any such acquisition or agreement pursuant to joint ventures existing on any letter of intent or other arrangement pursuant to which the date hereof valued at less than $10,000,000 Company or (C) for transactions valued at less than $10,000,000 any Subsidiary is a party, provided that the amount -------- ---- thereof does not exceed, individually or in the aggregate;, $2,000,000, other than as set forth on Schedule 5.1(d); --------------- (ive) none of the Company Propertiessell, Non-Controlling Properties or Identified Assets shall have been sold lease, license, mortgage or otherwise transferredencumber or subject to any Lien or otherwise dispose of any of its properties or assets, exceptexcept (i) immaterial assets, (Aii) in the ordinary course of business, business (Bincluding for trade-ins) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (Ciii) for where the amount of such sales does not exceed, individually or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together $2,000,000; (f) except in the ordinary course of business consistent with all past practice (i) incur any Indebtedness or guarantee any such sales and Indebtedness of another person, issue or sell any debt securities or warrants or other transfers rights to acquire any debt securities of the Company Propertiesor any Subsidiary, Non-Controlling Properties and Identified Assets guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing or (ii) make any loans, advances (other than advances to Subsidiaries or among Subsidiaries) or capital contributions to, or investments in, any other person; (g) from the “Sales Cap”); provided that date hereof through the Sales Cap shall not apply Closing Date, make or agree to make any capital expenditure or expenditures with respect to sales property, plant or transfers equipment for an amount in excess of Identified Assets to $5 million; (h) make any material tax election or settle or compromise any material income tax liability; (i) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the extent payment, discharge or satisfaction, in the same shall have been consummated ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in the express terms and conditions most recent consolidated financial statements (or the notes thereto) of the Company included in the 1998 Financial Statements or incurred thereafter in the ordinary course of business consistent with past practice, or waive any material benefits of, or agree to modify any confidentiality, standstill, non-solicitation or similar agreement to which the Company or any Subsidiary is a party; (j) modify, amend in any material respect or terminate any Material Contract to which the Company or any Subsidiary is a party, or waive, release or assign any material rights or claims (including any restrictions on transfer of Shares issued or to be issued pursuant to Company Acquisitions), other than in the ordinary course of business consistent with past practice; (k) except as set forth in Article II hereof; Schedule 5.1(k), or as required to comply --------------- with applicable Law or with the Investor's consent, (i) adopt, enter into, terminate or amend any Benefit Plan or other arrangement for the benefit or welfare of any director, officer or current or former employee, other than, in the case of non-officer or non-key employees, in the ordinary course of business consistent with past practice, (ii) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any director, officer or key employee except pursuant to existing written agreements, (iii) pay any material benefit not provided for under any Benefit Plan, (iv) except as permitted in clause (ii), grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Benefit Plans or agreement or awards made thereunder), (v) [Intentionally Omitted;]accelerate the vesting of any Company Stock Option or (vi) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; or (l) authorize any of, or commit or agree to take any of, the foregoing actions.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise for matters expressly provided or permitted, or contemplated, permitted by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the ClosingEffective Time, the following actions Company shall, and shall cause each Company Subsidiary to, in all material respects, conduct its business in the ordinary and usual course of business. In addition, and without limiting the generality of the foregoing, except for matters expressly permitted by this Agreement or Section 6.01 of the Company Disclosure Schedule, from the date of this Agreement to the Effective Time, the Company shall not, and shall not have been taken permit any Company Subsidiary to, do any of the following without the prior written consent of each Purchaser Parent: (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): a) (i) the Company shall not have (A) declareddeclare, set aside or paid pay any dividends on, or made make any other distributions in respect of, any of the Company’s its capital stock (stock, other than (A) regular quarterly cash dividends required on the Company Common Stock at a rate not in excess of the regular quarterly cash dividend most recently declared by the Company prior to retain REIT status or to avoid the imposition date of entity level taxes, this Agreement and (B) dividends and distributions by a Company Subsidiary to its parent, (ii) split, combined combine or reclassified reclassify any of its capital stock or issued issue or authorized authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or (Ciii) purchasedpurchase, redeemed redeem or otherwise acquired (other than as set forth on Section 7.1(r)(i) acquire any shares of capital stock of the Company Disclosure Letter or pursuant to any Company Benefit Plans) Subsidiary or any shares of its capital stock other securities thereof or any rights, warrants or options to acquire any such sharesshares or other securities or (iv) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization of the Company or any of the Company Subsidiaries; (b) authorize for issuance, issue, deliver, sell or grant (i) any shares of its capital stock, (ii) the any Voting Company shall not have amended the Company’s certificate of incorporation Debt or bylaws other voting securities, (iii) any securities convertible into or exchangeable for, or any options (including Company Stock Options), warrants or rights to acquire, any such shares, voting securities or convertible or exchangeable securities or (iv) any “phantom” stock, “phantom” stock rights, stock appreciation rights or stock-based performance units, other than to increase upon the authorized shares exercise of capital stockCompany Stock Options outstanding on the date of this Agreement and in accordance with their present terms; (iiic) neither the Company nor any amend its certificate of its Subsidiaries shall have acquired incorporation, by-laws or agreed other comparable charter or organizational documents; (d) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity Person or division thereof or (ii) any assets (excluding (x) inventory purchased in the ordinary and usual course of business and (y) fixed assets) having a value in excess of $500,000 in the aggregate (but in no event shall any such agreement require the Company or any Company Subsidiary to acquire any such assets after June 30, 2006); (e) (i) grant to any officer or director of the Company or any Company Subsidiary any material increase in compensation or fringe benefits, other than those required pursuant to existing agreements or Company Plans, (ii) grant to any present or former employee, officer or director of the Company or any Company Subsidiary any increase in severance or termination pay except as required by the terms of any existing agreements or Company Plans or any collective bargaining agreement, (Aiii) enter into or amend any employment, consulting, indemnification, severance or termination agreement with any present or former employee, officer or director, (iv) establish, adopt, enter into or amend in any material respect any Company Plan except as required by applicable law or the terms of any collective bargaining agreement (provided that the Company may amend Company Plans that constitute nonqualified deferred compensation plans within the meaning of Section 409A of the Code to permit eligible employees not yet in payment status to elect to receive distributions from the relevant plan following termination of employment over the 5 or 10 year period commencing on the first anniversary of the employee’s termination date, to the extent permitted under Section 409A of the Code and applicable guidance issued thereunder; provided that such election will not preclude the Company’s ability to terminate in its discretion, either prior to the Closing with Parent’s consent or after the Closing, as applicable, any or all of the plans and distribute deferred compensation as permitted under Section 409A of the Code), (v) except as permitted or required under Section 7.05, take any action to accelerate any rights or benefits, or make any material determinations not in the ordinary and usual course of business, under any Company Plan, (vi) loan or advance money or other property to any present or former employees, officers or directors of the Company or any Company Subsidiary (provided that the Company may advance amounts to its employees in the ordinary and usual course of business) or (vii) except as permitted or required under Section 7.05, grant any new, or amend any existing, Company Stock Option or enter into any agreement under which any Company Stock Option would be required to be issued; (f) make any change in accounting methods, principles or practices, except insofar as may be required by a change in GAAP; (g) make or agree to make any new capital expenditure or expenditures (including expenditures for fixed assets) that, individually, is in excess of $100,000 or, in the aggregate, are in excess of $2,000,000; (h) other than in the ordinary and usual course of business, make any material Tax election, change the Tax reporting or accounting policies or practices with respect to accounts payable or the collection of accounts receivable in any material respect, or settle or compromise any material Tax liability or refund, or surrender any right to claim a refund of Taxes; (i) enter into, renew, cancel or terminate any Contract that is listed on, or, if in effect on the date hereof, would be required to be listed on Section 4.14 of the Company Disclosure Schedule, or modify any of the material terms of any such Contract; (j) renew the Real Property Leases with respect to the Real Property Leases identified on Section 1.02 of the Company Disclosure Schedule, or modify any of the material terms of any such Real Property Leases (provided that the Company may renew the Real Property Lease identified on Section 1.02(a) of the Company Disclosure Schedule for an additional one-year term and on other terms that are no less favorable in all material respects to those in effect immediately prior to the date hereof); (k) other than in the ordinary and usual course of business, enter into, renew, cancel or terminate any other Real Property Lease, or modify any of the material terms of any such Real Property Lease; (l) incur any Indebtedness (excluding letters of credit) in an aggregate amount that is in excess of $5,000,000 in the aggregate or modify any of the material terms of any outstanding Indebtedness; (m) modify, amend or terminate, or waive, release or assign any material rights or claims with respect to any confidentiality or standstill agreement to which the Company or any Company Subsidiary is a party and which relates to a business combination involving the Company or any Company Subsidiary; (n) write up, write down or write off the book value of any assets, individually or in the aggregate, for the Company and the Company Subsidiaries, taken as a whole, other than (i) in the ordinary and usual course of business, (B) for transactions business and consistent with respect to joint ventures existing on the date hereof valued at less than $10,000,000 past practice or (Cii) for transactions valued at less than $10,000,000 in the aggregateas may be required by GAAP; (ivo) none pay, discharge, waive, settle or satisfy any claim, liability or obligation that is not a Proceeding (absolute, accrued, asserted or unasserted, contingent or otherwise) in respect of any matter requiring payment by the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold any Company Subsidiary in excess of $100,000 individually or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 1,000,000 in the aggregate, when taken together other than the payment, discharge, waiver, settlement or satisfaction, in the ordinary and usual course of business and consistent in amount and kind with all past practice; (p) pay, discharge, waive, release, assign, settle or compromise any pending or threatened Proceeding (i) in respect of any matter requiring payment by the Company or any Company Subsidiary in excess of $100,000 individually or $1,000,000 in the aggregate or entailing any admission of liability by the Company or any Company Subsidiary or any material non-monetary relief against the Company or any Company Subsidiary, or (ii) that is brought by any current, former or purported holder of any securities of the Company in its capacity as such sales and other transfers that (A) requires a payment to such security holders by the Company or any Company Subsidiary or (B) adversely affects in any material respect the ability of the Company Propertiesor any Company Subsidiary to conduct its business in a manner consistent with past practice; (q) continue planning for, Non-Controlling Properties or proceed with, the separation from the Company of any business or significant assets of the Company or any Company Subsidiary; (r) knowingly take any action (i) to cause its representations and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions warranties set forth in Article II hereof;IV to be untrue in any material respect, (ii) that would reasonably be likely to prevent or materially impede or delay the consummation of the Merger or the other transactions contemplated by this Agreement or (iii) that has, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; or (vs) [Intentionally Omitted;]authorize any of, or commit or agree to take any of, the foregoing actions.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as set forth on Schedule 3.2, as contemplated herein or as otherwise expressly provided or permitted, or contemplated, consented to by this Agreement or the Plan Summary Term Sheet (including, without limitation, Purchasers in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreementwriting, during the period from the date of this Agreement to and continuing until the ClosingClosing Date, the following actions shall not have been taken without the prior written consent of each Purchaser Company will, and will cause its affiliates to: (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): a) use their respective best efforts to (i) carry on the Business in the usual, regular and ordinary course as presently conducted and consistent with past practice, (ii) keep the Business intact, (iii) keep available the services of the present employees of the Business, and (iv) use best efforts to maintain the goodwill associated with the Business, including but not limited to preserving the relationships of customers, suppliers and others having business dealings with the Business; (b) not sell, lease or dispose of, or make any contract for the sale, lease or disposition of, or subject to Lien, any material assets of the Company shall or the Subsidiaries; (c) not have intentionally incur any liability or obligation (Aabsolute, accrued, contingent or otherwise) declaredor assume, set aside guarantee, endorse or paid any dividends on, or made any other distributions in respect of, any of otherwise as an accommodation become responsible for the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance obligations of any other securities in respect ofperson, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (ivd) none not split, combine or reclassify any shares of capital stock of the Company Propertiesor any Subsidiary, Non-Controlling Properties declare, pay or Identified Assets shall have been sold set aside for payment any dividend or other distribution in respect of capital stock of the Company or any Subsidiary, or directly or indirectly redeem, purchase or otherwise transferredacquire any shares of capital stock or other securities of the Company or any Subsidiary; (e) not issue, exceptsell, pledge, dispose of, encumber or deliver (Awhether through the issuance or granting of any options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class of the Company or any Subsidiary or any securities convertible into or exercisable or exchangeable for shares of stock of any class of the Company or any Subsidiary (other than issuance of Certificates in replacement of lost Certificates); (f) not amend or modify the Certificate or Articles of Incorporation or By-laws of the Company or the Subsidiaries; (g) not amend or terminate any contract or other agreement, other than in the ordinary course of businessbusiness consistent with past practices; (h) not make any change in financial or tax accounting methods, principles or practices unless required by GAAP or applicable law; (Bi) not extend credit in the sale of services, collection of receivables or otherwise, other than in the ordinary course of business consistent with past practices; (j) not fail to maintain its books, accounts and records in the usual, regular and ordinary manner on a wholly owned Subsidiary basis consistent with prior years; (k) not grant to any employee any increase in compensation or in severance or termination pay, grant any severance or termination pay, or enter into any employment agreement with any employee, except as may be required under employment or termination agreements in effect on the date of this Agreement; (l) not enter into any agreement which includes an aggregate payment or commitment on the part of either party of more than $50,000; (m) not adopt or amend any Employee Plan or collective bargaining agreements, except as required by law; (n) maintain in full force and effect all insurance described in Schedule 2.1.14; and (o) not take or omit to take any action as a result of which any representation or warranty of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]would be rendered untrue or incorrect if such representation or warranty were made immediately following the taking or failure to take such action.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during During the period from the date hereof to the Closing Date, the business of DUMA and HCN shall be operated by the respective entities in the usual and ordinary course of such business and in material compliance with the terms of this Agreement Agreement. Without limiting the generality of the foregoing: (a) DUMA and HCN, respectively, shall each use their reasonable efforts to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): (i) keep available the Company services of the present agents of DUMA and HCN; (ii) complete or maintain all existing material arrangements; (iii) maintain the integrity of all confidential information of DUMA and HCN; and (iv) comply in all material respects with all applicable laws; and (b) As expected and agreed under this Agreement, prior to closing, HCN will be selling its interest in 1,859,879 of Duma common stock shares for a note receivable from a 3rd party. Except as contemplated by this Agreement, DUMA and HCN shall not have (Ai) declaredsell, set aside lease, assign, transfer or paid otherwise dispose of any dividends onof their material assets or property including cash; (ii) agree to assume, guarantee, endorse or made in any other distributions in respect ofway become responsible or liable for, directly or indirectly, any of the Company’s material contingent obligation; make any material capital stock expenditures; (iii) enter into any transaction concerning a merger or consolidation other than dividends required to retain REIT status with the other party hereto or to avoid the imposition of entity level taxesliquidate or dissolve itself (or suffer any liquidation or dissolution) or convey, (B) splitsell, combined lease, transfer or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect otherwise dispose of, in lieu one transaction or a series of related transactions, all or in substitution for a substantial part of its capital stockproperty, business, or assets, or stock or securities convertible into stock of any subsidiary, or make any material change in the present method of conducting business; (Civ) purchased, redeemed declare or otherwise acquired pay any dividends or make any other distribution (other than as set forth whether in cash or property) on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or purchase, redeem, retire or otherwise acquire for value any rights, shares of its capital stock or warrants or options whether now or hereafter outstanding; (v) make or suffer to acquire exist any such shares; advances or loans to, or investments in any person, firm, corporation or other business entity not a party to this Agreement; (iivi) enter into any new material agreement or be or become liable under any new material agreement, for the Company shall not have amended the Company’s certificate lease, hire or use of incorporation any real or bylaws other than personal property; (vii) create, incur, assume or suffer to increase the authorized shares exist, any mortgage, pledge, lien, charge, security interest or encumbrance of capital stock; (iii) neither the Company nor any kind upon any of its Subsidiaries shall have acquired property or agreed assets, income or profits, whether now owned or hereafter acquired; or (viii) agree to acquire by merging or consolidating with, or by purchasing a substantial portion do any of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]foregoing.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from From and after the date of this Agreement until the earlier of the Closing Date and the date, if any, on which this Agreement is terminated pursuant to the ClosingSection 6.10, except as contemplated by this Agreement, the following actions shall not have been taken without the prior written consent of each Purchaser Company will, and will cause its Subsidiaries to, (a) use commercially reasonable efforts to, unless otherwise expressly contemplated by this Agreement or consented to in writing by Castle Creek (which consent such Purchaser agrees shall will not be unreasonably withheld, conditioned or delayed): ): (i) operate their business in the ordinary course consistent with past practice; (ii) preserve intact the current business organization of the Company; (iii) retain the services of their employees, consultants, and agents; (iv) preserve the current relationships of the Company shall not and its Subsidiaries with material customers and other Persons with whom the Company and its Subsidiaries have and intend to maintain significant relations; and (Av) declaredmaintain all of its operating assets in their current condition (normal wear and tear excepted); and (b) refrain from (1) declaring, set setting aside or paid paying any distributions or dividends on, or made making any distributions (whether in cash, securities, or other distributions property) in respect of, any of its capital stock other than dividends to the Company’s capital stock (other than dividends required Series A Preferred Stock pursuant to retain REIT status or to avoid the imposition of entity level taxesterms thereof, (B2) splitsplitting, combined combining or reclassified reclassifying any of its capital stock or issued issuing or authorized authorizing the issuance of any other securities in respect of, in lieu of or in substitution for capital stock or any of its other securities, and (3) purchasing, redeeming or otherwise acquiring any capital stock, assets or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock securities or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation capital stock, assets or bylaws other securities, other than to increase the authorized shares acquisitions of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) investment securities in the ordinary course of business. Furthermore, (B) for transactions with respect to joint ventures existing on from the date hereof valued at less than $10,000,000 of this Agreement until the Closing, the Company shall not, directly or (C) for transactions valued at less than $10,000,000 indirectly, amend, modify, or waive, and the Board shall not recommend approval of any proposal to the Company’s shareholders having the effect of amending, modifying, or waiving any provision in the aggregate; (iv) none Articles of Incorporation or bylaws of the Company Properties, in any manner adverse to Purchaser (except as provided in the Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (ivVoting Common Stock Amendment)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;].

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, contemplated by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the ClosingEffective Time, the following actions Company and its Subsidiaries will conduct their operations according to their ordinary and usual course of business, substantially consistent with past practice and will use commercially reasonable best efforts to maintain and preserve their business organizations and their material rights and to retain the services of their officers and key employees and maintain their current relationships with customers, suppliers, lessors, lessees, licensors and licensees, to the end that their goodwill and ongoing business shall not have been taken be impaired in any material respect. In addition, without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement, neither the Company nor any of its Subsidiaries will, prior to the Effective Time, without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):Parent: (ia) issue, sell or pledge, or authorize or propose the Company shall not have issuance, sale or pledge of (A) declared, set aside or paid additional shares of capital stock of any dividends on, or made any other distributions in respect of, any class of the Company’s capital stock (, or securities convertible into any such shares, or any rights, warrants or options to acquire any such shares or other convertible securities, other than dividends required such issuance of shares of Company Common Stock pursuant to retain REIT status the exercise of Options or Warrants, or, under certain circumstances, the Rights, or, under certain circumstances, Series A Junior Participating Preferred Shares pursuant to avoid the imposition exercise of entity level taxesthe Rights, in each case outstanding on the date hereof, or (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its for, shares of capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) stock of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such sharesoutstanding on the date hereof; (iib) the Company shall not have amended the Company’s certificate of incorporation make, declare or bylaws other than pay any dividend or distribution on, or, directly or indirectly, purchase or otherwise acquire, or propose to increase the authorized purchase or otherwise acquire, any outstanding shares of capital stockstock of the Company; (iiic) neither adjust, split, combine or reclassify capital stock of the Company; (d) enter into any agreement, understanding or arrangement with respect to the sale, voting, or registration of capital stock of the Company; (e) directly or indirectly sell, transfer, lease, pledge, mortgage, encumber, assign its right to occupy, or otherwise dispose of any property or assets of the Company nor any or its Subsidiaries, other than sales, transfers, leases, pledges, mortgages, encumbrances or other dispositions (i) in the ordinary course of its Subsidiaries shall have acquired business or agreed to acquire (ii) that, individually or in the aggregate, are immaterial; (f) acquire, by merging or consolidating with, or by purchasing an equity interest in or a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other mannermanner or means, any business or any corporationentity or other business organization or division thereof, partnershipor otherwise acquire any assets of any other person (other than the purchase of inventory and other assets from suppliers or vendors in the ordinary course of business and consistent with past practice (in amount and form)); (g) incur, associationcreate, joint ventureassume or otherwise become liable for any indebtedness for borrowed money or, limited liability company assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity (except for endorsement for deposit or division thereof collection of checks and negotiable instruments in the ordinary course of business), other than pursuant to agreements currently in place; (h) create any subsidiaries; (i) (i) enter into, adopt or amend any employment, consulting, deferred compensation, severance, change of control, retirement or other similar agreement, or any incentive plan, severance plan, bonus plan, stock, stock option or similar plan, or any other employee benefit plan, program or policy for the benefit of any current or former employee, officer, director or consultant of the Company or any of its subsidiaries, (ii) terminate any employment agreement that provides for severance payments to the employee of eleven (11) months or more, (iii) except (A) in the ordinary course of business, consistent with past practice, increase the compensation or benefits payable to any current or former employee, officer, director, or consultant of the Company or any of its Subsidiaries (Bincluding any such increase pursuant to any employee benefit plan) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or pay any amounts under such arrangements (including severance arrangements) not otherwise due, (iv) enter into any new, or amend any existing, collective bargaining agreement or similar agreement, or (Cv) provide any funding for transactions valued at less than $10,000,000 in the aggregateany rabbi trust or similar arrangement except as required by existing deferred compensation plans; (ivj) none change any material method or principle of Tax or financial accounting, except to the Company Propertiesextent required by applicable laws or United States generally accepted accounting principles, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, as advised by the Company’s regular independent accountants; (Ak) except in the ordinary course of businessbusiness consistent with past practice, (B) to a wholly owned Subsidiary settle any pending litigation, whether now pending or made or brought after the date of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv))Agreement; provided, and (C) for sales or other transfershowever, the net proceeds of which shall not exceed $1,000,000,000 in the aggregatethat, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales this subsection, Parent’s consent shall not be unreasonably withheld; (l) make, revoke or transfers amend any material Tax election, enter into any closing agreement, surrender any claim for a refund of Identified Assets Taxes, settle or compromise any claim or assessment with respect to a material amount of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the extent collection or assessment of any Taxes or, without consulting prior thereto with Parent, file or amend any material Tax Returns; provided, however, that such consent by Parent shall not be unreasonably withheld or delayed; and, provided, further, that the same Company shall have been consummated in accordance with right to take any of the express terms and conditions actions set forth in Article II hereofthis subsection if required by applicable law; (vm) [Intentionally Omitted;]propose or adopt any amendments to its Amended and Restated Certificate of Incorporation or By-Laws or similar governing documents; or (n) agree in writing or otherwise to take any of the foregoing actions or any action that would result in a breach of this Agreement by the Company or prevent or impair the consummation of the Merger.

Conduct of Business. The following shall be true in all material respects as of From the date hereof until and including the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, Sellers shall cause the Companies and the Subsidiaries to conduct their businesses in connection the ordinary course consistent with implementing past practice and to use their reasonable efforts to preserve intact their business organizations and relationships with third parties and to keep available the matters contemplated by Article II hereof) or any order services of the Bankruptcy Court Group's present officers and employees (it being understood that subject to the compliance by Sellers with the covenants in effect on this Section 7.1, the risk of supplier, customer and employee defections after the date hereof shall be borne by Purchasers). Without limiting the generality of the Agreementforegoing, during the period from the date of hereof until and including the Closing Date, except as disclosed in Exhibit 7.1 or contemplated by this Agreement to the ClosingAgreement, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): Sellers will (i) cause each Division to maintain capital expenditure in the Company shall not have (A) declaredordinary course of each Division's business, set aside or paid any dividends onconsistent with past practice, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the cause each Division to maintain all policies of insurance in respect of all risks covered and in place as at 66 66 December 31, 1999 at levels of coverage equal to or in excess of those maintained at that date, and (iii) will ensure that no Company shall not have amended the Company’s or Subsidiary will: (a) adopt or propose any change in its certificate of incorporation or bylaws or pass any other shareholder resolutions (other than to increase the authorized shares in respect of capital stockmatters expressly contemplated by this Agreement) or amend any term of any outstanding or issued share or security of any Company or Subsidiary; (iiib) neither the Company nor merge or consolidate with any of its Subsidiaries shall have acquired other person, enter into any recapitalization, reorganization, corporate restructuring, liquidation or agreed to acquire by merging or consolidating withdissolution, or by purchasing acquire, lease, license or otherwise purchase a substantial portion of the stock, or other ownership interests in, or substantial portion material amount of assets of, or by property from any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof person (except (A) for inventory purchased in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregatetrading); (ivc) none of the Company Propertiesincur, Non-Controlling Properties assume or Identified Assets shall have been sold or otherwise transferred, except, guarantee any indebtedness for borrowed money other than (Ai) indebtedness incurred under existing credit lines as disclosed in the ordinary course of business, (B) Exhibit 5.12 up to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject maximum amount equal to the same restrictions aggregate of any borrowings under this subsection such credit lines as at March 31, 2000 or (iv)), and (Cii) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, NonInter-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated Group Debt incurred in accordance with the express terms and conditions set forth in Article II hereofSection 7.3 below; (v) [Intentionally Omitted;]

Conduct of Business. The following shall be true Company has conducted its businesses only in all the ordinary and usual course consistent with past practices and there has not occurred any material respects as adverse change in its condition (financial or otherwise), results of operations, properties, assets, liabilities, business or prospects. Without limiting the generality of the Closing Date: Except foregoing, except as otherwise expressly provided disclosed on Schedule 4.12, since September 30, 1999, the Company has not: (1) declared or permittedpaid any dividends or other distribution (whether in cash, stock or other property) with respect to its capital stock, or contemplatedotherwise transferred or agreed to transfer any assets to any of its shareholders or Affiliates; (2) suffered any damage, destruction or loss, whether or not covered by this Agreement insurance, which has had or could have an adverse effect on any of its properties, assets, business or prospects; (3) voluntarily or involuntarily sold, transferred, surrendered, abandoned or disposed of any of its assets or property rights (tangible or intangible), other than inventory and minor amounts of personal property, in the Plan Summary Term Sheet ordinary course of business consistent with past practices at a price equal to the greater of fair market value or book value; (4) disclosed any proprietary or confidential information to any third party; (5) granted or made any mortgage or pledge or subjected itself or any of its properties or assets to any Encumbrance, except Permitted Encumbrances, (6) created, incurred or assumed any liability or indebtedness, for borrowed money or entered into any capitalized lease obligations; (7) made or committed to make any capital expenditures; (8) applied any of its assets to the direct or indirect payment, discharge, satisfaction or reduction of any amount payable directly or indirectly to or for the benefit of Sellers or any Affiliate thereof or to the prepayment of any such amounts, or otherwise entered into or modified any arrangement with any Affiliate of the Company or Sellers; (9) written off the value of any inventory or any accounts receivable or increased the reserves for obsolete, damaged, spoiled or otherwise not usable inventory or doubtful or uncollectible receivables; (10) granted any increase in the compensation payable or to become payable to directors, officers or employees (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) any such increase pursuant to any bonus, pension, profit-sharing or any order of the Bankruptcy Court in effect on the date of the Agreementother plan or commitment or otherwise), during the period from the date of this Agreement other than merit increases to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): (i) the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock officers and employees (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (ASellers and their Affiliates) in the ordinary course of business, (B) for transactions business and consistent with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregatepast practices; (iv11) none altered the manner of keeping its books, accounts or records, or changed in any manner the Company Properties, Non-Controlling Properties accounting practices therein reflected; (12) accelerated or Identified Assets shall delayed collection of notes or accounts receivable in advance of or beyond their regular dates or the dates when the same could have been sold or otherwise transferred, except, (A) collected in the ordinary course of businessbusiness consistent with past practices; (13) allowed its levels of inventory to vary in any material respect from the levels customarily maintained; (14) experienced any other event or condition of any character which has had or could have, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales individually or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers a material adverse effect on the condition (financial or otherwise), results of Company Propertiesoperations, Non-Controlling Properties and Identified Assets (assets, liabilities. properties, business or prospects of the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales Company, or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereofon employee, customer or supplier relations; (v15) [Intentionally Omitted;]engaged in or agreed to engage in any of the transactions or occurrences which would be prohibited prior to the Closing; or (16) agreed, whether in writing or otherwise, to do any of the foregoing.

Conduct of Business. The following shall be true (a) Conduct of Business by the Company. Except for matters set forth in all material respects as Section 5.01(a) of the Closing Date: Except as Company Disclosure Letter or otherwise expressly provided or permitted, or contemplated, permitted by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the ClosingEffective Time, the following actions Company shall conduct its business in the usual, regular and ordinary course of business and in substantially the same manner as previously conducted and use its reasonable best efforts to preserve intact its current business organization, keep available the services of its current officers and employees and keep its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. The Company shall maintain its assets and all parts thereof in as good working order and condition as at present, ordinary wear and tear excepted, consistent with past practice, and shall maintain in full force and effect current insurance policies or other comparable insurance coverage with respect to the assets and potential liabilities thereof. In addition, and without limiting the generality of the foregoing, except for matters set forth in Section 5.01(a) of the Company Disclosure Letter or conduct otherwise expressly permitted by this Agreement, from the date of this Agreement to the Effective Time, the Company shall not have been taken do any of the following without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):Parent: (i) the Company shall not have (A) declareddeclare, set aside or paid pay any dividends on, or made make any other distributions (whether in cash, stock, property or otherwise) in respect of, any of the Company’s its capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxesstock, (B) split, combined combine or reclassified reclassify any of its capital stock or issued issue or authorized authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or (C) purchase, redeem or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such sharesshares or other securities; (ii) the Company shall not have amended the Company’s certificate issue, deliver, sell, grant, pledge, transfer or otherwise encumber or dispose of incorporation or bylaws subject to any Lien (A) any shares of its capital stock, (B) any securities convertible into or exchangeable for, or any options, warrants, commitments or rights of any kind to acquire, any such shares, voting securities or convertible or exchangeable securities or (C) any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock-based performance units, other than to increase the authorized shares issuance of capital stockCompany Common Stock upon the exercise of Company Stock Options and Warrants outstanding on the date of this Agreement and in accordance with their terms as in effect on the date of this Agreement; (iii) neither amend the Company nor any of its Subsidiaries shall have acquired Charter or agreed the Company Bylaws; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial equity interest in or all or a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, associationcompany, limited liability company, joint venture, limited liability company association or other entity business organization or division thereof or (B) any assets that, individually or in the aggregate, are in excess of $10 million, except purchases of inventory in the ordinary course of business; (A) grant to any employee, officer or director of the Company any increase in compensation or pay any bonus, except to the extent required under employment agreements in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (B) grant to any employee, officer or director of the Company any increase in severance, change of control or termination pay, except to the extent required under any agreement in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (C) establish, adopt, enter into or amend any Company Benefit Agreement, any collective bargaining agreement, other labor union agreement or Company Benefit Plan, or (D) take any action to accelerate any rights or benefits, take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Agreement or Company Benefit Plan, or make any material determinations not in the ordinary course of business, under any collective bargaining agreement, labor union agreement or Company Benefit Plan or Company Benefit Agreement; (Bvi) for transactions with respect make any change in accounting methods, principles or practices affecting the reported assets, liabilities or results of operations of the Company, except as required by a change in GAAP; (vii) sell, lease (as lessor), license, encumber or otherwise dispose of or subject to joint ventures existing on the date hereof valued at less than $10,000,000 any Lien any properties or (C) for transactions valued at less than $10,000,000 assets that, individually or in the aggregate; (iv) none , are in excess of the Company Properties$1 million, Non-Controlling Properties except sales of commodity production, inventory and excess or Identified Assets shall have been sold or otherwise transferred, except, (A) obsolete assets in the ordinary course of business; (viii) (A) incur, assume or prepay any indebtedness for borrowed money or guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for any indebtedness or obligation of another person or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, except for short-term borrowings incurred in the ordinary course of business and additional borrowings under its credit facility not to exceed $10 million at any time outstanding, or (B) make or forgive any loans, advances or capital contributions to, or investments in, any other person; (ix) make or agree to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv))make any new capital expenditure or expenditures that, and (C) for sales individually or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and are in excess of $2.0 million in any calendar quarter; (x) make or change any material Tax election or settle or compromise any material Tax liability or refund; (xi) (A) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation, other transfers than the payment, discharge, settlement or satisfaction, in the ordinary course of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales business or transfers of Identified Assets to the extent the same shall have been consummated in accordance with their terms, of liabilities reflected or reserved against in the express terms and most recent financial statements (or the notes thereto) of the Company included in the Filed Company SEC Documents or incurred since the date of such financial statements in the ordinary course of business or (B) cancel any indebtedness that is material, individually or in the aggregate, to the Company, or waive any claims or rights of substantial value; (xii) adopt a plan or agreement of, or resolutions providing for or authorizing, complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization; (xiii) make, enter into or renew, extend, amend, modify, or waive any provisions of any Material Contract or relinquish or waive any rights under, or agree to the termination of, any Material Contract, except in the ordinary course of business; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to lapse, be cancelled or expire unless a new policy with substantially identical coverage is in effect as of the date of lapse, cancellation or expiration; or (xv) authorize, or commit or agree to take, any of the foregoing actions or take any action that would (y) make any representation or warranty in Article III hereof untrue or incorrect in any material respect, or (z) result in any of the conditions to the Offer set forth in Annex I hereto or any of the conditions to the Merger set forth in Article II hereof; (v) [Intentionally Omitted;]VII hereof not being satisfied.

Conduct of Business. (a) The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the AgreementCompany covenants and agrees that, during the period from the date of this Agreement to the ClosingEffective Time (unless Acquiror shall otherwise agree in writing, which agreement shall not be unreasonably withheld, and except as otherwise contemplated by this Agreement), the following actions Company will, and will cause the Subsidiary to, conduct its operations according to its ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, seek to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall not have been taken be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise permitted in this Agreement or disclosed in Section 6.1 of the Disclosure Schedule, prior to the Effective Time, neither the Company nor the Subsidiary will, without the prior written consent of each Purchaser (Acquiror, which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):: (i) the Company shall not have (A) declareddeclare, set aside or paid pay any dividends on, or made make any other distributions in respect of, any of the Company’s its capital stock (stock, other than dividends required and distributions by any direct or indirect wholly owned subsidiary of the Company to retain REIT status or to avoid the imposition of entity level taxesits parent, (B) split, combined combine or reclassified reclassify any of its capital stock or, except pursuant to the exercise of options, warrants, conversion rights, exchange rights and other contractual rights existing on the date hereof, issue or issued or authorized authorize the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or other equity interests, (C) purchase, redeem or otherwise acquire or amend any shares of capital stock or other equity interests of the Company or the Subsidiary or any other securities thereof or any rights, warrants or options to acquire any such shares, interests or other securities or (D) establish any new subsidiary; (ii) issue, deliver, sell, pledge or otherwise encumber or amend any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, interests, voting securities or convertible securities, including pursuant to any option plans of the Company shall not have amended or the Company’s certificate of incorporation or bylaws Subsidiary, other than to increase (A) the authorized shares issuance of capital stockShares upon the exercise of Options outstanding on the date of this Agreement in accordance with their present terms and (B) the issuance of Shares upon the exercise of the Warrants outstanding on the date of this Agreement in accordance with their present terms; (iii) neither the Company nor any amend its Certificate of its Subsidiaries shall have acquired Incorporation, By-Laws or agreed other comparable charter or organizational documents; (iv) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof or (B) any asset requiring or involving an expenditure or purchase price in excess of $100,000, except (x) mergers and consolidations between or among one or more wholly owned subsidiaries of the Company that will not create adverse tax consequences to the Company or the Subsidiary, and (y) purchases of inventory in the ordinary course of business consistent with past practice; (v) sell, lease, license, mortgage or otherwise encumber or subject to any lien or otherwise dispose of any of its properties or assets, except in the ordinary course of business consistent with past practice; (A) other than incurrences of indebtedness (which term shall be deemed not to include trade payables incurred in the ordinary course of business or draw-downs of the Company's existing bank and lease lines in the ordinary course of business) which, in the aggregate, do not exceed $50,000, incur any indebtedness for borrowed money or guarantee any such indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or the Subsidiary, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing or (B) for transactions with respect make any loans, advances or capital contributions to, or investments in, any other person other than to joint ventures existing on the date hereof valued at less than $10,000,000 Company, or (C) for transactions valued at less than $10,000,000 in any direct or indirect wholly owned subsidiary of the aggregateCompany; (ivvii) none pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction, in accordance with their terms of liabilities reflected or reserved against in the most recent consolidated financial statements (or the notes thereto) of the Company Properties, Non-Controlling Properties included in the Company SEC Reports filed and publicly available prior to the date of this Agreement or Identified Assets shall have been sold or otherwise transferred, except, (A) incurred in the ordinary course of businessbusiness consistent with past practice since the date of such financial statements, or waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company or the Subsidiary is a party; (viii) (A) adopt, enter into, terminate or amend any Company Benefit Plan or other arrangement for the benefit or welfare of any director, officer, current or former employee, representative, consultant or adviser of the Company or the Subsidiary, (B) increase in any manner the compensation or fringe benefits of, or pay any bonus to, any such director, officer, employee, representative, consultant or adviser except for normal increases or bonuses as contractually required pursuant to a wholly owned Subsidiary agreements disclosed in the Company SEC Reports filed and publicly available prior to the date of this Agreement or in the ordinary course of business consistent with past practice to employees other than directors and executive officers of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv))and that, and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with do not result in any material increase in benefits or compensation expense to the Company and the Subsidiary relative to the level in effect prior to such action (but in no event shall the aggregate amount of the increases granted to any such director, officer or employee exceed 5% of the aggregate annualized compensation of such director, officer or employee and in no event shall the aggregate amount of all such sales increases exceed 1% of the aggregate annualized compensation expense of the Company and other transfers the Subsidiary reported in the most recent consolidated financial statements of the Company Properties, Non-Controlling Properties included in the Company SEC Reports filed and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets publicly available prior to the extent date of this Agreement) and except as contractually required pursuant to agreements included as part of a Company SEC Reports filed and publicly available prior to the same shall have been consummated date of this Agreement, (C) pay any benefit not provided for under any Company Benefit Plan, (D) except for payments or awards in cash permitted by clause (B), grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Company Benefit Plan (including the grant of stock options, stock appreciation rights, stock-based or stock-related awards, performance units or restricted stock, or the removal of existing restrictions in any company Benefit Plans or agreements or awards made thereunder) or (E) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Company Benefit Plan; (ix) make or agree to make any capital expenditure or expenditures other than for maintenance purposes in excess of $25,000; (x) modify, amend or terminate any contract or agreement set forth in the Company SEC Reports or any real property lease to which the Company or the Subsidiary is a party, or waive, release or assign any material rights or claims thereunder; (xi) take or agree to take any action that would prevent the Merger from constituting a reorganization qualifying under the provisions of Section 368(a) of the Code; (xii) conduct its business in a manner or take, or cause to be taken, any other action that would or might reasonably be expected to prevent or materially delay the Company, Merger Sub or Acquiror from consummating the transactions contemplated hereby in accordance with the express terms of this Agreement (regardless of whether such action would otherwise be permitted or not prohibited hereunder); or (xiii) agree to take any of, the foregoing actions. (b) Acquiror covenants and conditions set forth in Article II hereofagrees that, during the period from the date of this Agreement to the Effective Time, neither Acquiror or the Subsidiary will, without the prior written consent of the Company, which consent shall not be unreasonably withheld: (i) take or agree to take any action that would prevent the Merger from constituting a reorganization qualifying under the provisions of Section 368(a) of the Code; (vii) [Intentionally Omitted;]conduct its business in a manner or take, or cause to be taken, any other action that would or might reasonably be expected to prevent or materially delay Acquiror, Merger Sub or the Company from consummating the transactions contemplated hereby in accordance with the terms of this Agreement (regardless of whether such action would otherwise be permitted or not prohibited hereunder); or (iii) agree to take any of the foregoing actions. (c) During the period of time from the date of this Agreement to the Effective Time, Merger Sub shall not engage in any activities of any nature, except as provided in or contemplated by this Agreement.

Conduct of Business. The following shall be true Except as disclosed in all material respects as the SEC ------------------- Documents, in Section 6.8.2 of the Closing Date: Except as otherwise expressly provided or permittedCompany Disclosure Letter, or contemplated, as contemplated ------------- by this Agreement Agreement, since December 31, 1998 to the date hereof, the Company's business has been conducted in the ordinary course, and there has not been any: (a) adverse and material change in the condition (financial or the Plan Summary Term Sheet (includingotherwise), without limitationresults of operations, in connection with implementing the matters contemplated by Article II hereof) assets, liabilities, Prospects or any order business of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement Company; (b) amendment to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned Company's or delayed): (i) the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status 's Subsidiaries' charter or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such sharesby-laws; (iic) the Company shall not have amended sale, assignment, disposition, transfer, pledge, mortgage or lease of any material asset primarily used or held for use in the Company’s certificate of incorporation or bylaws 's business, other than to increase sales of inventory in the authorized shares ordinary course of capital stockbusiness generally consistent with past practice; (iiid) neither the Company nor incurrence of any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating withIndebtedness, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) than accounts payable arising in the ordinary course of business, (B) for transactions consistent with respect to joint ventures past practice, and other than under the existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 revolving credit facility in the aggregateordinary course of business; (ive) none material decline in the backlog of the Company Propertiesand its Subsidiaries; (f) material reduction in any cash or short-term investments or their equivalent, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) other than to meet cash needs arising in the ordinary course of business, generally consistent with past practices; (Bg) sale, assignment, disposition, transfer, pledge, mortgage or lease of any Owned Real Estate or Leased Real Estate; (h) increase in the compensation or fringe benefits payable or to a wholly owned Subsidiary become payable to any officers or salaried employees of the Company, other than routine increases made in the ordinary course of business and generally consistent with past practice or as required by Law or under any existing agreements set forth in Section 6.8.2(h) of the Company Disclosure Letter; ----------------- (which Subsidiary shall be subject to the same restrictions under this subsection (iv))i) issuance, and (C) for sales sale or disposition of any capital stock or other transfers, the net proceeds of which shall not exceed $1,000,000,000 equity interest in the aggregateCompany, when taken together with all such sales and other transfers except upon the valid exercise of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated Options in accordance with the express terms thereof, or issuance or grant of any options, warrants or other rights to purchase any such capital stock or equity interest or any securities convertible into or exchangeable for such capital stock or equity interest or any other change in the issued and conditions set forth in Article II hereofoutstanding capitalization of the Company; (v) [Intentionally Omitted;]

Conduct of Business. The following shall be true in all material respects as of Pending the Closing Date: Except . -------------------------------------------- (a) TeleCorp agrees with Tritel that, except as permitted, required or contemplated by this Agreement, as described on Schedule B hereto, as ---------- described in reasonable detail on Schedule 6.2(a) or as otherwise expressly provided or permitted, or contemplated, consented to --------------- in writing by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser Tritel (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned withheld or delayed):), during the Interim Period: (i) it shall cause its business to be conducted only in the Company Ordinary Course of Business provided, however, that no action by TeleCorp -------- ------- or any of its Subsidiaries with respect to matters specifically addressed by any other provision of this Section 6.2(a) shall be deemed a breach of -------------- this clause (i) unless such action would constitute a breach of one or more of such other provisions; (ii) it will use all commercially reasonable efforts to preserve substantially intact its business organization, to keep available the services of its employees and to preserve the current relationships with its customers, suppliers and other persons with which it has significant business relations; (iii) it shall not, and shall not have permit any of its Subsidiaries to: (A) declared, set aside amend its Certificate of Incorporation or paid any dividends on, By-laws or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, equivalent organizational document (B) splitmerge or consolidate, combined or reclassified any of its capital stock obligate itself to do so, with or issued or authorized the issuance of into any other securities in respect of, in lieu of or in substitution for its capital stock, or entity; (C) purchased, redeemed issue or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) sell any shares of its capital stock or other equity interests in or securities convertible into or exchangeable for such shares or equity interests, or sell or transfer any assets, except for the exercise of outstanding options or convertible securities, sales of assets in the Ordinary Course of Business, other asset sales for consideration aggregating not more than $25,000,000 in the aggregate, the issuance of up to 1,000,000 shares of TeleCorp Class A Voting Common Stock in acquisition transactions, and the granting of stock options to purchase Shares of Class A TeleCorp Common Stock to employees, and no more than 25% of such options being granted to employees who are in a category of senior vice president or higher, in an aggregate amount not to exceed options to purchase more than 2 million shares of Class A TeleCorp Common Stock, with an exercise price not less than the average closing bid price of the TeleCorp Common Stock for the five trading days prior to the date hereof and with a 4 year vesting schedule (with 50% vesting in equal installment over such 4 year period and 50% vesting at the end of such 4 year period); (D) split, combine or reclassify any outstanding shares of its capital stock; (E) declare, set aside, make or pay any dividend (other than dividends by Subsidiaries of TeleCorp to wholly owned Subsidiaries of TeleCorp or to TeleCorp) or other distribution, payable in stock, property or otherwise, with respect to any of its capital stock except in the Ordinary Course of Business or redeem, purchase or otherwise acquire or offer to redeem, purchase or otherwise acquire any shares of its capital stock except the acquisition, redemption or repurchase of capital stock pursuant to existing arrangements; (F) establish or materially increase any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, warrants performance awards, or options restricted stock awards), stock purchase or other employee benefit plan, or otherwise increase the compensation payable or to become payable to any of its officers or key employees or those of any Subsidiary, except in the Ordinary Course of Business, as permitted under sub- clause (C) above or as may be required to comply with applicable law or existing contractual arrangements; (G) enter into any employment or severance agreement with any of its employees or establish, adopt or enter into any collective bargaining agreement, except in the Ordinary Course of Business or as may be required by applicable law or existing contractual arrangements; (H) acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any corporation, partnership, limited liability company, other business organization or any division thereof for consideration in excess of $50,000,000 in the aggregate or with capital stock other than in accordance with the exception to sub-clause (C) above or enter into any joint venture; (I) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, except in the Ordinary Course of Business and except in connection with transaction permitted by clause (M) below; (J) make any capital expenditures that are not provided for in the capital expenditure budget previously provided to Tritel aggregating in excess of $25,000,000; (K) make a purchase commitment inconsistent with past practice or materially in excess of the normal, ordinary and usual requirements; (L) change accounting methods, principles or practices, except insofar as may be required by a change in GAAP; (M) incur any indebtedness for borrowed money other than (i) indebtedness incurred pursuant to credit facilities in effect on the date hereof, (ii) additional unsecured indebtedness in an aggregate amount not to exceed $100,000,000, (iii) sale-leaseback transactions for tower facilities and (iv) indebtedness assumed pursuant to acquisition transactions permitted by clause (H) above, or mortgage or pledge any of its property or assets relating to its business or subject any such sharesassets to any material encumbrance other than (i) Permitted Encumbrances and (ii) in connection with indebtedness permitted to be incurred pursuant to this clause (M); (N) sell, assign, transfer or license any TeleCorp Intellectual Property Rights, except in the Ordinary Course of Business; (O) enter into, amend, terminate, take or omit to take any action that would constitute a material violation of or default under, or waive any material rights under, any TeleCorp Material Contract; (P) take any action or fail to take any reasonable action permitted by this Agreement if such action or failure to take action would result in (x) any of its representations and warranties set forth in this Agreement becoming untrue in any material respect or (y) any of the conditions to the Closing set forth in Article VII of this ----------- Agreement not being satisfied; (Q) take any action or fail to take any action that would prevent the Mergers and the Contribution from constituting a tax-free transaction within the meaning of Section 351 of the Code or that would cause either Merger to fail to qualify as a tax-free reorganization under Section 368(a) of the Code; or (b) Tritel agrees with TeleCorp that, except as permitted, required or contemplated by this Agreement, as described on Schedule B hereto, as ---------- described in reasonable detail on Schedule 6.2(b) or as otherwise consented to --------------- in writing by TeleCorp (which consent shall not be unreasonably withheld or delayed), during the Interim Period: (i) it shall cause its business to be conducted only in the Ordinary Course of Business provided, however, that no action by Tritel or -------- ------- any of its Subsidiaries with respect to matters specifically addressed by any other provision of this Section 6.2(b) shall be deemed a breach of this -------------- clause (i) unless such action would constitute a breach of one or more such other provisions; (ii) it will use all commercially reasonable efforts to preserve substantially intact its business organization, to keep available the Company services of its employees and to preserve the current relationships with its customers, suppliers and other persons with which it has significant business relations; (iii) it shall not, and shall not have amended the Company’s certificate permit any of incorporation its Subsidiaries to: (A) amend its Certificate of Incorporation or bylaws By-laws or other than equivalent organizational document (B) merge or consolidate, or obligate itself to increase the authorized do so, with or into any other entity; (C) issue or sell any shares of its capital stock or other equity interests in or securities convertible into or exchangeable for such shares or equity interests; or sell or transfer any Assets, except for the exercise of outstanding options or convertible securities, sales of assets in the Ordinary Course of Business, other asset sales for consideration aggregating not more than $25,00,000 in the aggregate, the issuance of up to 1,000,000 shares of Tritel Class A Voting Common Stock in acquisition transactions and the granting of stock options to purchase shares of Tritel Class A Common Stock to employees, and no more than 25% of such options being granted to employees who are in a category of senior vice president or higher, in an aggregate amount not to exceed options to purchase more than 2.6 million shares of Tritel Class A Common Stock with an exercise price not less than the average closing bid price of the Tritel Class A Common Stock for the five trading days prior to the date hereof and with a 4 year vesting schedule (with 50% vesting in equal installments over such 4 year period and 50% vesting at the end of such 4 year period); it being understood that Tritel may amend the 1999 Tritel Stock Option Plan to permit the grants described herein. (D) split, combine or reclassify any outstanding shares of its capital stock; (iiiE) neither the Company nor declare, set aside, make or pay any dividend (other than dividends by Subsidiaries of Tritel to wholly owned Subsidiaries of Tritel or to Tritel) or other distribution, payable in stock, property or otherwise, with respect to any of its Subsidiaries shall have acquired capital stock except in the Ordinary Course of Business or agreed redeem, purchase or otherwise acquire any shares of its capital stock except the acquisition, redemption or repurchase of capital stock pursuant to acquire by merging existing arrangements; (F) establish or consolidating withmaterially increase any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or otherwise increase the compensation payable or to become payable to any of its officers or key employees or those of any Subsidiary, except in the Ordinary Course of Business, as permitted under sub-clauses (C) above and (G) below or as may be required to comply with applicable law or existing contractual arrangements; (notwithstanding the foregoing, Tritel may amend its Restricted Stock Agreements (a) to fully vest all recipients thereof on or before December 31, 2002, and in the event (i) any recipient of a grant thereunder is terminated without cause, (ii) there is a diminution in the recipient's current authority, responsibilities, duties, position or title or (iii) the recipient is required to relocate more than 50 miles from Tritel's current headquarters in Jackson, Mississippi; (b) to remove the automatic repurchase provisions relating to the change of control that would be caused by purchasing the Mergers; (c) to amend the provisions relating to the requirement to pay upon exercise; (d) to provide for a substantial portion payment to the recipient of an amount necessary to offset the income and excise tax effects of the stockamendments and the Merger with an aggregate cost to Tritel under (i) this sub-clause (d), (ii) the proviso immediately succeeding this sub-clause (d) (of the ------- nature described in this sub-clause (d)) and (iii) paragraph (G) of this Section 6.2(b)(iii) (of the nature described in this sub-clause ------------------- (d)), not to exceed, in the aggregate, $26,000,000; provided, however, -------- ------- that Tritel may amend the employment agreement of Xx. Xxxxxxx Xxxxxx to fully vest all restricted stock awards at the Effective Time and make other changes similar to those to be made to the Restricted Stock Agreement; and; provided, further, however, Tritel may amend the -------- ------- ------- Restricted Stock Agreement of Xxxxxx Xxxxxxxxxx to provide for immediate vesting of all her restricted stock awards upon a significant change in the scope of her job responsibilities (it being understood that any requirement of significant travel shall be deemed a significant change in scope of responsibilities and that employment by Tritel II and not the Holding Company shall not, per se, be a factor constituting a significant change in scope of responsibilities); (G) enter into any employment or severance agreement with any of its employees, other than the agreements dated the date hereof with Messrs. Xxxxxxx and Xxxxxx and attached as Exhibits J-1 and J-2 ------------ --- hereto, or other ownership interests inestablish, adopt or substantial portion enter into any collective bargaining agreement, except in the Ordinary Course of assets ofBusiness or as may be required by applicable law or existing contractual arrangements; (H) acquire (including, without limitation, by merger, consolidation or by any other manner, any business acquisition of stock or assets) any corporation, partnership, association, joint venture, limited liability company company, other business organization or other entity or any division thereof except (A) for consideration in excess of $50,000,000 in the ordinary course of business, (B) for transactions aggregate or with respect to joint ventures existing on the date hereof valued at less capital stock other than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms exception to sub-clause (C) above or enter into any joint venture; (I) assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, except in the Ordinary Course of Business and except in connection with transactions permitted by clause (M) below; (J) make any capital expenditures that are not provided for in the capital expenditures budget previously provided to Tritel aggregating in excess of $25,000,000; (K) make a purchase commitment inconsistent with past practice or materially in excess of the normal, ordinary and usual requirements; (L) change accounting methods, principles or practices, except insofar as may be required by a change in GAAP; (M) incur any indebtedness for borrowed money other than (i) indebtedness incurred pursuant to credit facilities in effect on the date hereof, (ii) additional unsecured indebtedness in an aggregate amount not to exceed $100,000,000, (iii) sale-leaseback transactions for tower facilities and (iv) indebtedness assumed pursuant to acquisition transactions permitted by clause (H) above, or mortgage or pledge any of its property or assets relating to its business or subject any such assets to any material encumbrance other than (i) Permitted Encumbrances and (ii) in connection with indebtedness permitted to be incurred pursuant this to clause (M); (N) sell, assign, transfer or license any Tritel Intellectual Property Rights, except in the Ordinary Course of Business; (O) enter into, amend, terminate, take or omit to take any action that would constitute a material violation of or default under, or waive any material rights under, any Tritel Material Contract; (P) take any action or fail to take any reasonable action permitted by this Agreement if such action or failure to take action would result in (x) any of its representations and warranties set forth in this Agreement becoming untrue in any material respect or (y) any of the conditions to the Closing set forth in Article II hereofVII of this ----------- Agreement not being satisfied; (vQ) [Intentionally Omitted;]take any action, or fail to take any action, that would prevent the Mergers and the Contribution from constituting a tax-free transaction within the meaning of Section 351 of the Code or that would cause either Merger to fail to qualify as a tax-free reorganization under Section 368(a) of the Code; or (R) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter otherwise prohibited by this Section 6.2(b). -------------- (c) The provisions of this Section 6.2 shall be without prejudice ----------- to any approval, veto or similar rights AT&T may have with respect to any of the actions or events specified above.

Conduct of Business. The following shall be true in all material respects as of From and after the Closing Date: Except date hereof until the Closing, except as otherwise expressly provided or permittedcontemplated by this Agreement, or contemplatedas consented to in writing by the Purchasers, by this Agreement the Company shall: (a) use reasonable commercial efforts to preserve its business, operations, physical facilities, working conditions and its business relationships with customers, suppliers, licensors, licensees, contractors and other persons with whom it has significant business relations; (b) not take any action that would cause a breach of the representations and warranties contained herein; (c) not amend its Articles of Incorporation or the Plan Summary Term Sheet Bylaws (includingor other similar governing instrument); (d) not split, without limitationcombine or reclassify any of its shares, declare, set aside or pay any dividend or other distribution (whether in connection with implementing the matters contemplated by Article II hereof) cash, stock or property or any order combination thereof) in respect of its equity interests, make any other actual or constructive distribution in respect of its interests or otherwise make any payments to holders in their capacity as such, or redeem or otherwise acquire any of its securities or any other securities; (e) not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or otherwise permit its corporate existence to be suspended, lapsed or revoked; (f) not create or form any Subsidiary; (g) other than in the Bankruptcy Court ordinary course of its business, (1) incur or assume any Liability in effect on excess of US$1,000; (2) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the date obligations of any other Person; (3) make any loans, advances or capital contributions to or investments in any other Person; nor (4) pledge or otherwise Encumber its shares; (h) not acquire, sell, lease, license, transfer or otherwise dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of $1,000 in the Agreement, during aggregate or that are otherwise material to it other than in the period from the date ordinary course of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):business; (i) the Company shall not have (A1) declaredacquire (by merger, set aside consolidation or paid any dividends on, or made any other distributions in respect of, any acquisition of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (Cassets) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company partnership or other entity or division thereof except or any equity interest therein; (A2) amend, modify, waive or terminate any right under any material contract in any material way; nor (3) authorize any new capital expenditure or expenditures that individually is in excess of $500 or in the ordinary course aggregate are in excess of business$1,000; (j) not enter into any Contract; (k) issue, promise or contract to issue any securities or instruments convertible into securities of such Person; or (Bl) for transactions not make any change with respect to joint ventures existing on the date hereof valued at less than $10,000,000 compensation or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none benefits of the Company Propertiesany officer, Non-Controlling Properties director or Identified Assets shall have been sold Employee or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]Former Employee.

Conduct of Business. The following shall be true in all material respects (a) Except as contemplated or permitted by this Agreement, as required by applicable Laws, as contemplated by any of the Closing Date: Except as otherwise expressly provided or permittedmatters set forth in Section 5.1(a) of the Company Disclosure Schedule, or contemplatedwith the prior written consent of Parent (which consent shall not be unreasonably withheld, by this Agreement delayed or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreementconditioned), during the period from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VII, (x) the Company shall, and shall cause each of its Subsidiaries to, use reasonable best efforts to conduct its business in all material respects in the Closingordinary course and to preserve intact its present lines of business, maintain its rights and franchises and preserve satisfactory relationships with Governmental Authorities, employees, customers and suppliers, and (y) the following actions Company shall not, and shall not have been taken without the prior written consent permit any of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):its Subsidiaries to: (i) the Company shall not have (A) declaredissue, set aside or paid any dividends onsell, or made grant any other distributions in respect of, any shares of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchasedany securities or rights convertible into, redeemed exchangeable or otherwise acquired (other than exercisable for, or evidencing the right to subscribe for any shares of its capital stock, or any rights, warrants or options to purchase any shares of its capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its capital stock, except as set forth on Section 7.1(r)(i5.1(a)(i) of the Company Disclosure Letter Schedule; (ii) redeem, purchase or pursuant to Company Benefit Plans) otherwise acquire any of its outstanding shares of its capital stock stock, or any rights, warrants or options to acquire any such sharesshares of its capital stock, except (A) pursuant to Company Material Contracts set forth on Section 5.1(a)(ii) of the Company Disclosure Schedule as in effect as of the date hereof or (B) in connection with withholding to satisfy Tax obligations with respect to Company RSUs or Company Performance Share Awards, acquisitions in connection with the forfeiture of equity awards, or acquisitions in connection with the settlement of Company RSUs or Company Performance Share Awards; (iiiii) (A) declare, authorize, set aside for payment or pay any dividend on, or make any other distribution in respect of, any shares of its capital stock, other than (1) dividends paid by any Subsidiary of the Company shall to the Company or to any wholly- owned Subsidiary of the Company, (2) quarterly cash dividends with respect to the Company Common Stock not have amended to exceed the current annual per share dividend rate by more than $0.04 per fiscal year, with record dates and payment dates consistent with the Company’s certificate current dividend practice, or (3) a “stub period” dividend to holders of incorporation record of Company Common Stock as of immediately prior to the Effective Time equal to the product of (x) the number of days from the record date for payment of the last quarterly dividend paid by the Company prior to the Effective Time, multiplied by (y) a daily dividend rate determined by dividing the amount of the last quarterly dividend prior to the Effective Time by ninety-one (91) or bylaws other than to increase the authorized (B) adjust, split, combine, subdivide or reclassify any shares of its capital stock; (iiiiv) neither incur any Indebtedness (or amend any Contract relating to Indebtedness) except for Indebtedness (1) incurred to replace, renew, extend, refinance or refund any existing Indebtedness, in the same principal amount of such existing Indebtedness and upon the maturity of such existing Indebtedness in accordance with its terms (2) incurred in accordance with Section 5.1(a)(iv) of the Company nor Disclosure Schedule, or (3) among the Company and any of its wholly-owned Subsidiaries or among any of such wholly-owned Subsidiaries; provided that, in no event shall any Indebtedness incurred pursuant hereto (or any Contract relating to such Indebtedness) include any term or provision pursuant to which the consummation of the Merger or the other transactions contemplated by this Agreement would reasonably be expected to result in a breach, default or event of default with respect to such Indebtedness (or any Contract relating to such Indebtedness) or permit the holders of any Indebtedness of the Company or any of its Subsidiaries shall have acquired to accelerate the payment of any Indebtedness or agreed require the Company or any of its Subsidiaries to, voluntarily or involuntarily, redeem, repurchase or repay any Indebtedness prior to acquire its scheduled maturity; (v) sell, pledge, dispose of, transfer, lease, license or encumber any of its properties, assets or business (including by merging merger, consolidation or consolidating withdisposition of stock or assets), other than (A) immaterial assets in the ordinary course of business consistent with past practice, (B) pursuant to Company Material Contracts set forth on Section 5.1(a)(v) of the Company Disclosure Schedule as in effect on the date of this Agreement, or (C) transfers among the Company and its wholly owned Subsidiaries; (vi) make capital expenditures except as budgeted in the Company’s current long term plan (plus a 20% variance) that was made available to Parent; (vii) make any acquisition (including by purchasing merger or share exchange) of the capital stock, equity securities, membership interests or a substantial material portion of the stockassets of any other Person, or other ownership interests make any loans, advances or capital contributions to, or investments in, or substantial portion of assets of, or by any other mannerperson (other than any wholly owned Subsidiary of the Company), any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) acquisitions not in excess of $25,000,000 individually or $50,000,000 in the aggregate or (B) pursuant to Company Material Contracts set forth on Section 5.1(a)(vii) of the Company Disclosure Schedule as in effect on the date of this Agreement; (viii) increase in any respect the compensation of any of its directors or employees (provided that payments of bonuses and other grants and awards made in the ordinary course consistent with past practice shall not constitute an increase in compensation), except (A) as required pursuant to applicable Law or the terms of Company Plans or other employee benefit plans or arrangements in effect on the date of this Agreement and (B) increases in salaries, wages and benefits of employees and director fees made in the ordinary course of business; (ix) adopt or amend any Company Plan except as required by Law or for immaterial or ministerial amendments; (x) make any material change to its methods of accounting, except as required by GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act, as required by a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization) or as required by applicable Law; (xi) amend the Company Charter Documents, amend the organizational documents of any Subsidiary, or exercise any approval or consent right within its discretion to amend any organizational documents of any Company Joint Venture; (xii) adopt a plan or agreement of complete or partial liquidation or dissolution; (xiii) enter into, modify or amend in any material respect, or terminate or waive any material right under, any Company Material Contract, except for any new agreement, modification, amendment, termination or waiver in the ordinary course of business consistent with past practice; (xiv) waive, release, assign, settle or compromise any material Claim against the Company or any of its Subsidiaries, other than waivers, releases, assignments, settlements or compromises that (A) with respect to the payment of monetary damages, involve only the payment of monetary damages (i) equal to or less than the amounts specifically reserved with respect thereto on the consolidated financial statements of the Company included in the Company SEC Documents (including the notes thereto) or (ii) do not exceed $5,000,000 in the aggregate during any consecutive twelve-month period, and (B) except as contemplated by Section 5.9, with respect to any non-monetary terms and conditions therein, impose or require actions that would not reasonably be expected to be material and adverse to the Company and its Subsidiaries, taken as a whole; (xv) make or change any material Tax election, change any material method of Tax accounting (except as required by applicable Law including the adoption of the tangible property regulations and disposition rules), settle or compromise any material Tax liability or refund, amend any material Tax Return (except that the Company and its Subsidiaries may amend any Tax Return in order to effectuate the carryback of specified liability losses, net operating losses, capital losses or tax credits), enter into any written agreement with a Governmental Authority with respect to Taxes, consent to the extension or waiver of the limitation period applicable to any Tax matter, or materially amend or change any of its methods for reporting income, deductions or accounting for Tax purposes, except, in each case, as required in relation to the items referenced in Section 3.9 of the Company Disclosure Schedule; (xvi) effectuate a “plant closing” or “mass layoff,” as those terms are defined in WARN; (xvii) enter into a new line of business; (xviii) materially change any of its energy price risk management and marketing of energy parameters, limits and guidelines (the “Company Risk Management Guidelines”) or enter into any physical commodity transactions, exchange-traded futures and options transactions, over-the-counter transactions and derivatives thereof or similar transactions other than as permitted by the Company Risk Management Guidelines; (xix) take any action that would reasonably be expected to prevent or materially impede, interfere with, hinder or delay the consummation by Parent or any of its Subsidiaries of the Transactions; or (xx) agree or commit to take any of the foregoing actions. (b) During the period from the date of this Agreement until the Effective Time, Parent and Merger Sub shall not, and Parent shall cause its Subsidiaries not to, take any action that would reasonably be expected to prevent or materially impede, interfere with, or delay the consummation by Parent or Merger Sub of the Transactions. (c) Notwithstanding anything to the contrary herein, the Company may, and may cause any of its Subsidiaries to, take reasonable actions in compliance with applicable Law with respect to any operational emergencies (including any restoration measures in response to any hurricane, tornado, tsunami, flood, earthquake or other natural disaster or weather-related event, circumstance or development), equipment failures, outages or an immediate and material threat to the health or safety of natural Persons. (d) Notwithstanding anything to the contrary contained herein, between the date of this Agreement and the Effective Time, the Company and its Subsidiaries may (i) continue to make Regulatory Filings in the ordinary course of business, (Bincluding without limitation those filings described on Section 5.1(d) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company PropertiesDisclosure Schedule, Non-Controlling Properties and (ii) take any other action contemplated by or Identified Assets shall have been sold described in any such state or otherwise transferred, except, (A) federal filings or other submissions filed or submitted in connection with such Regulatory Filings prior to the date of this Agreement in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;].

Conduct of Business. The following shall be true in all material respects (a) Except as contemplated or permitted by this Agreement, as required by applicable Laws, as contemplated by any of the Closing Date: Except as otherwise expressly provided or permittedmatters set forth in Section 5.1(a) of the Company Disclosure Schedule, or contemplatedwith the prior written consent of Parent (which consent shall not be unreasonably withheld, by this Agreement delayed or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreementconditioned), during the period from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VII, (x) the Company shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to conduct its business in all material respects in the Closingordinary course and to preserve intact its present lines of business, maintain its rights and franchises and preserve satisfactory relationships with Governmental Authorities, employees, customers and suppliers, and (y) the following actions Company shall not, and shall not have been taken without the prior written consent permit any of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):its Subsidiaries to: (i) the Company shall not have (A) declaredissue, set aside sell or paid grant any dividends on, or made any other distributions in respect of, any shares of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its capital stock, or any rights, warrants or options to purchase any shares of its capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its capital stock, except (CA) purchased, redeemed for the issuance of any shares of Company Common Stock in settlement of RSUs and Performance Awards outstanding as of the date hereof or otherwise acquired (other than as set forth on granted after the date hereof in accordance with Section 7.1(r)(i5.1(a)(viii) of the Company Disclosure Letter Schedule, in each case, which are subject to settlement in accordance with their terms without regard to the Transactions, or pursuant to (B) as set forth in Section 5.1(a)(i) of the Company Benefit PlansDisclosure Schedule; (ii) redeem, purchase or otherwise acquire any of its outstanding shares of its capital stock stock, or any rights, warrants or options to acquire any such sharesshares of its capital stock, except (A) pursuant to Company Material Contracts set forth in Section 5.1(a)(ii) of the Company Disclosure Schedule in effect as of the date hereof or (B) in connection with withholding of shares of Company Common Stock to satisfy Tax obligations with respect to RSUs and Performance Awards, or acquisitions in connection with the forfeiture of RSUs and Performance Awards; (iiiii) (A) declare, authorize, set aside for payment or pay any dividend on, or make any other distribution in respect of, any shares of its capital stock, other than (1) dividends paid by any Subsidiary of the Company shall to the Company or to any wholly owned Subsidiary of the Company, (2) quarterly cash dividends with respect to the Company Common Stock not have amended to exceed the current annual per share dividend rate by more than $0.06 per year, with record dates and payment dates consistent with the Company’s certificate current dividend practice, or (3) a “stub period” dividend to holders of incorporation record of Company Common Stock as of immediately prior to the Effective Time equal to the product of (x) the number of days from the record date for payment of the last quarterly dividend paid by the Company prior to the Effective Time, multiplied by (y) a daily dividend rate determined by dividing the amount of the last quarterly dividend prior to the Effective Time by ninety-one (91) or bylaws other than to increase the authorized (B) adjust, split, combine, subdivide or reclassify any shares of its capital stock; (iiiiv) neither incur any Indebtedness in an outstanding principal amount in excess of $250,000,000 in the aggregate, except for Indebtedness (1) incurred to replace, renew, extend, refinance or refund any existing Indebtedness in a principal amount not in excess of the principal amount of the existing Indebtedness that is the subject of such replacement, renewal, extension, refinancing or refunding, (2) for borrowed money incurred pursuant to (and up to the maximum amount permitted under) any Contract relating to Indebtedness as in effect as of the date of this Agreement or (3) among the Company nor and any of its wholly owned Subsidiaries or among any of such wholly owned Subsidiaries; (v) sell, pledge, dispose of, transfer, lease, license or encumber any of its properties or assets, except (A) dispositions as to which the sales price is not in excess of $25,000,000 in the aggregate in any calendar year, (B) pursuant to a Company Material Contract in effect as of on the date of this Agreement, (C) dispositions of inventory, equipment or other assets that are no longer used or useful in the conduct of the business of the Company or any of its Subsidiaries shall have acquired or agreed (D) transfers among the Company and its wholly owned Subsidiaries; (vi) make capital expenditures, except for an aggregate amount of capital expenditures in any calendar year equal to acquire the aggregate amount budgeted in the Company’s current long term plan that was made available to Parent prior to the date hereof for such year (plus a 10% variance), excluding any acquisition expenditures permitted pursuant to Section 5.1(a)(vii); (vii) make any acquisition (including by merging or consolidating withmerger) of, or by purchasing investments in, the capital stock, equity securities, membership interests or a substantial material portion of the stockassets of any other Person, for consideration in excess of $25,000,000 in the aggregate in any calendar year, excluding capital expenditures permitted pursuant to Section 5.1(a)(vi); (1) increase the compensation or benefits of any of its directors, executive officers or Company Employees (provided that payments of bonuses and other grants and awards shall be made in the ordinary course of business consistent with past practice), (2) grant to any director or Company Employee of the Company or any of its Subsidiaries any increase in change- in-control, severance, retention or termination pay, or other ownership interests enter into or amend any change-in-control, severance, retention or termination agreement with any Company Employee, or substantial portion (3) take any action to accelerate the time of assets ofvesting, funding or payment of any compensation or benefits under any Company Plan, except, in each case, (A) as required pursuant to applicable Law, (B) pursuant to the terms of Company Plans or CBAs set forth on Section 3.16(a) of the Company Disclosure Schedule, or by (C) for increases in salaries, wages and benefits of directors, executive officers or Company Employees made in the ordinary course of business consistent with past practice (including in connection with general merit-based increases and in connection with promotions in the ordinary course of business consistent with past practice); (ix) establish, adopt, amend or terminate any other manner, any business Company Plan (or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof plan that would be a Company Plan if in existence on the date hereof) except (A) as required by Law or (B) for routine, immaterial or ministerial amendments; (x) make any material change to its methods of accounting, except as required by GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act, as required by a Governmental Authority (including the Financial Accounting Standards Board or any similar organization) or as required by applicable Law; (xi) amend the Company Charter Documents or organizational documents of any Subsidiary of the Company (except for immaterial or ministerial amendments); (xii) adopt or consummate a plan or agreement of complete or partial liquidation or dissolution; (xiii) enter into, modify or amend in any material respect, or terminate or waive any material right under, any Company Material Contract, except for (A) entry into or modification, amendment, termination or waiver of any Company Material Contract in the ordinary course of business or (B) a termination without material penalty to the Company or any of its Subsidiaries; (xiv) settle or compromise any material Claim against the Company or any of its Subsidiaries, other than settlements or compromises that (A) with respect to the payment of monetary damages, involve only the payment of monetary damages by the Company or any of its Subsidiaries not exceeding $2,000,000 in the aggregate during any consecutive twelve-month period, and (B) except as contemplated by Section 5.9, with respect to any non-monetary terms and conditions therein, impose or require actions that would not reasonably be expected to be material and adverse to the Company and its Subsidiaries, taken as a whole; (xv) make or change any material Tax election, change any material method of Tax accounting, amend any material Tax Return, settle or compromise any material Tax liability, surrender any claim for a refund of material Taxes, enter into any closing agreements relating to material Taxes or grant any waiver of any statute of limitations with respect to, or any extension of any period of assessment of, any material Taxes; (xvi) permit any material insurance policy to terminate or lapse without replacing such policy with substantially comparable coverage; (xvii) enter into any Derivative Transactions other than in the ordinary course of business and in a manner consistent with and in compliance with hedging policies and procedures existing as of the date hereof, or materially change any of its energy price or interest rate risk management guidelines; (xviii) enter into any new material line of business; (xix) take any action that would reasonably be expected to prevent or materially impede, interfere with or delay the consummation by the Company of the Transactions; or (xx) agree in writing to take any of the foregoing actions. (b) During the period from the date of this Agreement until the Effective Time, Parent, US Parent and Merger Sub shall not, and Parent shall cause its Subsidiaries not to, take any action that would reasonably be expected to prevent or materially impede, interfere with, or delay the consummation by Parent, US Parent or Merger Sub of the Transactions. (c) Notwithstanding anything to the contrary herein, the Company may, and may cause any of its Subsidiaries to, take reasonable actions in compliance with applicable Law with respect to any operational emergencies (including any restoration measures in response to any act of terrorism, hurricane, tornado, tsunami, flood, earthquake or other natural disaster or weather-related event, circumstance or development), equipment failures, outages or threat to the environment or the health or safety of natural Persons. (d) Between the date of this Agreement and the Effective Time, the Company and its Subsidiaries (i) shall continue to make Regulatory Filings in the ordinary course of business consistent with past practice, including those filings described in Section 5.1(d) of the Company Disclosure Schedule, (ii) may respond (after reasonable consultation with Parent) to Regulatory Filings made by other parties in which the Company or one or more of its Subsidiaries is an interested party, and (iii) may take any other action contemplated by or described in any such state or federal filings or other submissions filed or submitted in connection with Regulatory Filings in the ordinary course of business; provided, however, that, without in any way limiting the rights of the Company and its Subsidiaries set forth in the foregoing clauses (i), (ii) or (iii) of this Section 5.1(d), the Company shall (A) keep Parent promptly informed of any material communications or meetings with any Governmental Authority with respect to rate cases and shall provide copies of any written communications or materials submitted to or received from any Governmental Authority in connection therewith, (B) for transactions consult with Parent and give Parent a reasonable opportunity, within the time constraints imposed in such rate cases, to comment on material written communications or materials submitted to any Governmental Authority, in each case with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of any rate cases, which the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) consider in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv))good faith, and (C) for sales at the request of Parent, provide Parent a reasonable opportunity to participate in any material meeting or other transfers, communications related thereto. Parent shall have the net proceeds opportunity to review and comment on all economic aspects of any rate case filing and shall have the right to approve (which approval shall not exceed $1,000,000,000 be unreasonably withheld, conditioned or delayed) any settlement of any rate case and rate case filing insofar as it would reasonably be expected to result in an outcome for the aggregate, when taken together with all such sales and other transfers Surviving Corporation or any of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided its Subsidiaries that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets would be materially adverse to the extent Surviving Corporation or any of its Subsidiaries after the same shall have been consummated Effective Time, taking into account the requests made by the Company to the applicable Governmental Authority in accordance connection with such rate case and the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]resolution of similar recent rate cases by the Company.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from From and after the date of this Agreement until the earlier of the Closing Date and the date, if any, on which this Agreement is terminated pursuant to the ClosingSection 6.10, except as contemplated by this Agreement, the following actions shall not have been taken without the prior written consent of each Purchaser Company will, and will cause its Subsidiaries to, (a) use commercially reasonable efforts to, unless otherwise expressly contemplated by this Agreement or consented to in writing by Xxxxxx X. Xxxxxxxx (which consent such Purchaser agrees shall will not be unreasonably withheld, conditioned or delayed): ): (i) operate their business in the ordinary course consistent with past practice; (ii) preserve intact the current business organization of the Company; (iii) retain the services of their employees, consultants, and agents; (iv) preserve the current relationships of the Company shall not and its Subsidiaries with material customers and other Persons with whom the Company and its Subsidiaries have and intend to maintain significant relations; and (Av) declaredmaintain all of its operating assets in their current condition (normal wear and tear excepted); and (b) refrain from (1) declaring, set setting aside or paid paying any distributions or dividends on, or made making any distributions (whether in cash, securities, or other distributions property) in respect of, any of its capital stock other than dividends to the Company’s capital stock (other than dividends required Series A Preferred Stock pursuant to retain REIT status or to avoid the imposition of entity level taxesterms thereof, (B2) splitsplitting, combined combining or reclassified reclassifying any of its capital stock or issued issuing or authorized authorizing the issuance of any other securities in respect of, in lieu of or in substitution for capital stock or any of its other securities, (3) purchasing, redeeming or otherwise acquiring any capital stock, assets or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock securities or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation capital stock, assets or bylaws other securities, other than to increase the authorized shares acquisitions of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) investment securities in the ordinary course of business, and (B4) for engaging in any transactions with respect to joint ventures existing on or entering into any contracts between or among the date hereof valued at less than $10,000,000 Company and any shareholder, officer or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none director of the Company Propertiesor immediate family member thereof. Furthermore, Non-Controlling Properties from the date of this Agreement until the Closing, the Company shall not, directly or Identified Assets indirectly, amend, modify, or waive, and the Board shall have been sold not recommend approval of any proposal to the Company’s shareholders having the effect of amending, modifying, or otherwise transferred, except, (A) waiving any provision in the ordinary course Articles of business, (B) to a wholly owned Subsidiary Incorporation or bylaws of the Company (which Subsidiary shall be subject in any manner adverse to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]Purchaser.

Conduct of Business. (a) The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the AgreementCompany covenants and agrees that, during the period from the date of this Agreement to the ClosingEffective Time (unless the Parties shall otherwise agree in writing and except as otherwise contemplated by this Agreement) it will (i) not incur any Liability or obligation, dispose of any asset or conduct any activities, (ii) seek to preserve intact its current business organizations and (iii) timely file all Tax returns in accordance with past practices and proceedings. (b) Without limiting the generality of the foregoing, and except as otherwise permitted in this Agreement, prior to the Effective Time, the following actions Company shall not have been taken not, without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):Parent: (i) issue, deliver, sell, transfer, dispose of, pledge or otherwise encumber, or authorize or propose the Company shall not have issuance, sale, transfer, disposition or pledge or other encumbrance of (A) declared, set aside or paid any dividends onadditional shares of capital stock of any class, or made any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other distributions in respect ofagreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of the Company’s capital stock (other than dividends required to retain REIT status stock, or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of of, or in substitution for for, shares outstanding on the date hereof to any Person; (ii) redeem, purchase or otherwise acquire, or offer to redeem, purchase or otherwise acquire, any of its outstanding securities (including the Company Common Shares); (iii) split, combine, subdivide or reclassify any shares of its capital stock, set aside for payment or (C) purchasedpay any dividend, redeemed or otherwise acquired (make any other than as set forth on Section 7.1(r)(i) actual, constructive or deemed distribution in respect of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or otherwise make any rights, warrants or options payments to acquire any stockholders in their capacity as such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired Distribution Transactions or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) as otherwise specifically provided for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregateherein); (iv) none adopt a plan of the Company Propertiescomplete or partial liquidation, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferreddissolution, exceptmerger, (A) in the ordinary course of businessconsolidation, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv))restructuring, and (C) for sales recapitalization or other transfersreorganization (other than the Merger, the net proceeds of which shall not exceed $1,000,000,000 in Distribution Transactions and the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”transactions specifically provided for herein); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omittedadopt any amendments to its articles of incorporation or by-laws or other charter documents or by-laws or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the Company;] (vi) incur any Indebtedness or guarantee any such Indebtedness or make any loans, advances or capital contributions to, or investments in, any other Person; (vii) make, change or revoke any Tax election, file any amended Tax Return, settle or compromise any federal, state, local or foreign Tax liability or change (or make a request to any taxing authority to change) its method of accounting for Tax purposes, enter into a closing agreement with any taxing authority, surrender any right to claim a refund for Taxes, consent to an extension of the statute of limitations applicable to any Tax claim or assessment, or take any other similar action (or omit to take any action), if such election, change, amendment, agreement, settlement, surrender, consent or action or omission could have the effect of increasing the Tax liability of the Company after the Closing Date; (viii) enter into any strategic alliance or joint marketing arrangement or agreement other than routine alliances, arrangements or agreements; (ix) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) or litigation (whether or not commenced prior to the date of this Agreement); (x) except as required by applicable law or this Agreement, call or hold any meeting of stockholders of the Company; (xi) engage in any practice, take any action, fail to take any action or enter into any transaction which could cause any representation or warranty of the Company to be untrue in any material respect, (xii) enter into or amend any contract, agreement or purchase order; (xiii) hire any employee or engage any consultant; or (xiv) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without Without the prior written consent of each Purchaser PQC (which ------------------- consent such Purchaser agrees shall not be unreasonably withheld), conditioned or delayed): (i) the Company shall not have and the Stockholders shall not permit the Company to: (Aa) declaredtake any action to amend the Company's Articles of Incorporation or bylaws or other organizational documents; (b) issue any stock, set aside bonds or paid other corporate securities or grant any dividends on, option or made issue any other distributions in respect of, warrant to purchase or subscribe to any of such securities or issue any securities convertible into such securities or authorize the Company’s transfer of any of its outstanding capital stock stock; (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (Bc) split, combined combine or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) reclassify any shares of its capital stock; declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any rightscombination thereof) in respect of its capital stock; or make any payment under the Company's Stockholder Benefits Plan or similar Plan if such payment would cause, warrants or options is reasonably expected to acquire cause, the Company to fail to satisfy any such sharesof the conditions to Closing in Article V of this Agreement. (d) incur any obligations or liabilities (absolute or contingent) greater than one thousand dollars ($1,000) in the aggregate, except current liabilities incurred and obligations under contracts entered into in the Ordinary Course of Business; (iie) the Company shall not have amended the Company’s certificate acquire, sell, lease, encumber or dispose of incorporation any assets or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating withproperty, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company association or other entity or division thereof except (A) business, other than purchases and sales of assets in the ordinary course Ordinary Course of businessBusiness; (f) discharge or satisfy any Security Interest or pay any obligation or liability other than in the Ordinary Course of Business; (g) mortgage or pledge any of its property or assets or subject any such assets to any Security Interest; (h) take any action or fail to take any action within their respective control and permitted by this Agreement with the knowledge that such action or failure to take action would result in (i) any of the representations and warranties of the Company and the Stockholders set forth in this Agreement becoming untrue or (ii) any of the conditions to the Merger set forth in Article V not being satisfied; (i) merge or consolidate with or into any corporation or other entity; (j) make, accrue or become liable for any bonus, profit sharing or incentive payment, except for accruals under existing plans, if any, or increase the rate of compensation payable or to become payable by it to any of its officers, directors or employees, other than increases in the Ordinary Course of Business consistent with past practice; (Bk) make any election or give any consent under the Code or the tax statutes of any state or other jurisdiction or make any termination, revocation or cancellation of any such election or any consent or compromise or settle any claim for transactions past or present tax due; (1) waive any rights of material value; (m) modify, amend, alter or terminate any of its executory contracts of a material value or which are material in amount; (n) take any act or permit to occur any omission constituting a breach or default under any contract, indenture or agreement by which it or its properties are bound; (o) fail to use its reasonable efforts to: (i) preserve the possession and control of its assets and the Practice; (ii) keep in faithful service its present officers and employees; (iii) preserve the goodwill of its patients, suppliers, agents, brokers and others having business relations with respect to joint ventures it; and (iv) keep and preserve its business existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in until after the aggregateClosing Date; (ivp) none of the Company Propertiesfail to operate its business and maintain its books, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) accounts and records in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), customary manner and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregateOrdinary Course of Business and maintain in good repair its business premises, when taken together with all such sales fixtures, machinery, furniture and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereofequipment; (vq) [Intentionally Omittedenter into any leases, contracts, agreements or understandings which are required to be performed in whole or in material part after the Closing Date;] (r) engage any new employee except in the Ordinary Course of Business; (s) materially alter the terms, status or funding condition of any Employee Benefit Plan; or (t) commit or agree to do any of the foregoing in the future.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from From the date of this Agreement to the ClosingClosing Date, the following actions shall not have been taken without parties will conduct their business and engage in transactions, including extensions of credit, only in the prior ordinary course and consistent with past practice and policies, except as otherwise required by this Agreement or with the written consent of each Purchaser the other party. Each party will use reasonable good faith efforts to (which consent such Purchaser agrees shall not be unreasonably withheldi) preserve its business organizations intact, conditioned (ii) maintain good relationships with employees, and (iii) preserve for itself the good will of customers and others with whom business relationships exist. From the date hereof to the Closing Date, except as otherwise consented to or delayed):approved by PSB in writing or as permitted or required by this Agreement, JADE will not: (i) except for an amendment to the Company shall not have (A) declaredname of the corporation, set aside amend or paid change any dividends onprovision of its articles of incorporation, charter, or made any other distributions in respect of, any bylaws ; (ii) change the number of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or issue or grant any rightsoption, warrants warrant, call, commitment, subscription, Right or options agreement of any character relating to acquire its authorized or issued capital stock or any securities convertible into shares of such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation stock, or bylaws other than to increase the authorized split, combine or reclassify any shares of capital stock;, or declare, set aside or pay any dividend or other distribution in respect of capital stock, or redeem or otherwise acquire any shares of capital stock. (iii) neither grant any severance or termination pay, (other than pursuant to written policies or written agreements of JADE in effect on the Company nor date hereof and provided to PSB prior to the date hereof), enter into any of its Subsidiaries shall have acquired new or agreed to acquire by merging or consolidating amend any existing employment agreement with, or by purchasing a increase the compensation of, any employee, officer or director of JADE, except for routine periodic increases, individually and in the aggregate, in accordance with past practice, or hire or agree to hire any additional employees, except for hiring in accordance with past practice; (iv) merge or consolidate with any other corporation; sell or lease all or any substantial portion of its assets or business; make any acquisition of all or any substantial portion of the stock, business or other ownership interests in, or substantial portion assets of assets of, or by any other mannerperson, any business or any corporation, partnershipfirm, association, joint venturecorporation or business organization other than in connection with the collection of any loan or credit arrangement and any other person; enter into a purchase and assumption transaction with respect to deposits and liabilities; permit the revocation or surrender of its certificate of authority to maintain, limited liability company or file an application for the relocation of, any existing branch office, or file an application for a certificate of authority to establish a new branch office; (v) sell or otherwise dispose of any asset other than in the ordinary course of business consistent with past practice; subject any asset to a lien, pledge, security interest or other entity encumbrance (other than in connection with deposits, repurchase agreements, bankers acceptances, "treasury tax and loan" accounts established in the ordinary course of business and transactions in "federal funds" and the satisfaction of legal requirements in the exercise of trust powers) other than in the ordinary course of business consistent with past practice; incur any indebtedness for borrowed money (or division thereof guarantee any indebtedness for borrowed money), except in the ordinary course of business consistent with past practice; (Avi) take any action which would result in any of the representations and warranties set forth in this Agreement becoming untrue as of any date after the date hereof or in any of the conditions set forth in Article V hereof not being satisfied; (vii) change any method, practice or principle of accounting, except as may be required from time to time by GAAP (without regard to any optional early adoption date) or any Regulatory Authority; (viii) waive, release, grant or transfer any rights of value or modify or change in any material respect any existing material agreement to which they are a party, other than in the ordinary course of business, consistent with past practice; (Bix) for transactions with respect to joint ventures existing implement any pension, retirement, profit sharing, bonus, welfare benefit or similar plan or arrangement that was not in effect on the date hereof valued at less than $10,000,000 of this Agreement, or (C) for transactions valued at less than $10,000,000 materially amend any existing plan or arrangement except to the extent such amendments do not result in the aggregatean increase in cost; (ivx) none purchase any security for its investment portfolio not rated investment grade or higher by Standard & Poor's Corporation or "A-" by Moody's Investor Servxxxx, Xnc., except in the ordinary course of the Company Propertiesbusiness consistent with past practice; (xi) except as set forth in their respective Disclosure Schedule, Non-Controlling Properties enter into, renew, extend or Identified Assets shall have been sold modify any other transaction with any Affiliate other than a subsidiary; (xii) enter into any interest rate swap or otherwise transferredsimilar commitment, exceptagreement or arrangement, (A) except in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (vxiii) [Intentionally Omitted;]except for the execution of this Agreement, take any action that would give rise to a right of payment to any individual under any employment agreement; or (xiv) agree to do any of the foregoing. For purposes of this Section 4.01, it shall not be considered in the ordinary course of business for JADE to do any of the following: (i) make any capital expenditure of $100,000 or more not disclosed on JADE Disclosure Schedule 4.01, without the prior written consent of the other party; (ii) make any sale, assignment, transfer, pledge, hypothecation or other disposition of any assets having a book or market value, whichever is greater, in the aggregate in excess of $100,000, other than pledges of assets to secure government deposits, to exercise trust powers, sales of assets received in satisfaction of debts previously contracted in the normal course of business, issuance of loans, or transactions in the investment securities portfolio or repurchase agreements made, in each case, in the ordinary course of business; or (iii) undertake or enter any lease, contract or other commitment for its account, other than in the normal course of providing credit to customers as part of its banking business, involving a payment of more than $100,000 annually, or containing a material financial commitment and extending beyond 12 months from the date hereof.

Conduct of Business. The following 7.1 Conduct of Business by ICP Unless UTCSub shall be true otherwise agree in all material respects writing or as of the Closing Date: Except as otherwise alternatively expressly provided permitted or permitted, or contemplated, specifically contemplated by this Agreement or the Plan Summary Term Sheet (includingAgreement, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the AgreementICP covenants and agrees that, during the period from the date of this Agreement until this Agreement is terminated: (a) the business of ICP and its subsidiaries shall be conducted only in, and ICP and its subsidiaries shall not take any action except in, the usual and ordinary course of business and consistent with past practice, and ICP shall use all commercially reasonable efforts to maintain and preserve its and its subsidiaries' business organization, assets, employees and advantageous business relationships; (b) ICP shall not directly or indirectly do or permit to occur any of the following: (i) amend the ICP Governing Documents; (ii) declare, set aside or pay any dividend or other distribution or payment (whether in cash, shares or property) in respect of its share capital; (iii) issue, grant, sell or pledge or agree to issue, grant, sell or pledge any shares of ICP or its subsidiaries, or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares of ICP or its subsidiaries, other than ICP Shares issuable pursuant to the Closingterms of ICP Options outstanding on the date hereof; (iv) redeem, purchase or otherwise acquire any of its outstanding shares or other securities; (v) split, combine or reclassify any of its shares; (vi) adopt a plan of liquidation or resolutions providing for the following actions liquidation, dissolution, merger, consolidation or reorganization of ICP or any of its subsidiaries; or (vii) enter into or modify any contract, agreement, commitment or arrangement with respect to any of the foregoing, except as permitted above; (c) other than pursuant to commitments entered into prior to the date of this Agreement as disclosed in the Disclosure Schedule or ICP's SEC Reports, neither ICP nor any of its subsidiaries shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned directly or delayed):indirectly: (i) the Company shall not have (A) declaredsell, set aside or paid any dividends onpledge, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu dispose of or encumber any assets except in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) the ordinary course of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; business; (ii) the Company shall not have amended the Company’s certificate acquire (by merger, amalgamation, consolidation or acquisition of incorporation shares or bylaws other than to increase the authorized shares of capital stock; (iiiassets) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company partnership or other entity business organization or division thereof thereof, or, except (A) for investments in securities made in the ordinary course of business, make any investment either by purchase of shares or securities, contributions of capital (B) for transactions with respect other than to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Propertiessubsidiaries), Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferredproperty transfer, exceptor, (A) except in the ordinary course of business, purchase of any property or assets of any other individual or entity; (Biii) to incur any indebtedness for borrowed money or any other material liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or make any loans or advances, except in the ordinary course of business; (iv) except for the Officer Obligations, pay, discharge or satisfy any material claims, liabilities or obligations other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice of liabilities reflected or reserved against in its financial statements or incurred in the ordinary course of business consistent with past practice; (v) authorize, recommend or propose any release or relinquishment of any material contract right other than in the ordinary course of business consistent with past practice; (vi) waive, release, grant or transfer any rights of material value or modify or change in any material respect any existing material license, lease, contract, production sharing agreement, government land concession or other document, other than in the ordinary course of business consistent with past practice; (vii) enter into any interest rate swaps, currency swaps or any other rate fixing agreement for a wholly owned Subsidiary financial transaction or enter into any call arrangement of any sort or any forward sale agreement for commodities, other than in the ordinary course of business consistent with past practice; (viii) authorize or propose any of the Company foregoing, or enter into or modify any contract, agreement, commitment or arrangement to do any of the foregoing; or (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (Cix) for sales or make any capital expenditures other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated than in accordance with the express terms and conditions set forth 1999 capital expenditure budget previously disclosed in Article II hereofwriting to UTC; (vd) [Intentionally Omittedneither ICP nor any of its subsidiaries shall create any new Officer Obligations and, except for payment of the existing Officer Obligations, neither ICP nor any of its subsidiaries shall grant to any officer or director an increase in compensation in any form, grant any general salary increase other than in accordance with the requirements of any existing collective bargaining or union contracts, grant to any other employee any increase in compensation in any form other than routine increases in the ordinary course of business consistent with past practices, make any loan to any officer or director, or take any action with respect to the grant of any severance or termination pay arising from the Offer or a change of control of ICP or the entering into of any employment agreement with, any senior officer or director, or with respect to any increase of benefits payable under its current severance or termination pay policies;] (e) neither ICP nor any of its subsidiaries shall adopt or amend or make any contribution to any bonus, profit sharing, option, pension, retirement, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with the law or as required by existing provisions of any such plans, programs, arrangements or agreements; and (f) ICP shall use its reasonable efforts to cause it current insurance (or re- insurance) policies not be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect.

Conduct of Business. The following shall be true Except for the actions set forth in all material respects as of the Closing Date: Except as otherwise expressly provided Schedule 7.19, and except for any transactions contemplated by or permitted, any facts or contemplated, by events disclosed in this Agreement or the Plan Summary Term Sheet (including, without limitationin Schedule 7.19, in connection with implementing the matters contemplated period between the 31 December 2009 and the date hereof there has not been, in any case solely as it relates to either of the Companies: (a) any recapitalization or reorganization which materially changes the corporate structure or capitalization of the Companies; (b) any merger or other similar business combination between any of the Companies and any third party (including any member of Seller’s Group); (c) any declaration or payment of dividends or distribution of profit shares by Article II hereofany of the Companies to any member of Seller’s Group, except as made under the ES Profit Transfer Agreement; (d) any sale, issuance or other grant of any capital stock or equity securities in, or any order right to acquire any equity securities, in either of the Bankruptcy Court in effect on the date Companies; (e) any divestiture by any of the AgreementCompanies of a shareholding or business with a value in excess of EUR 250,000 individually or in the aggregate or any sale, during assignment, transfer, failure to maintain, abandonment, license or other disposition or encumbrance of any material non-inventory assets of the period from the date of this Agreement to the ClosingCompanies or material Company Intellectual Property Rights, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): other than (i) the transfers of Company shall not have (A) declaredIntellectual Property Rights from one Company to another Company, set aside or paid any dividends on, or made any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; and (ii) the non-exclusive licenses of Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) Intellectual Property Rights in the ordinary course of business; (f) any execution, acceleration, termination, material modification or cancellation of any Material Contract outside the ordinary course of business (Bit being understood that the execution, acceleration, termination, material modification or cancellation of those Material Contracts listed in Schedule 7.11(a) need not be noted in Schedule 7.19), including entry into any commitment or other agreement regarding the lease or purchase of a manufacturing facility in the United States of America; (g) any incurrence or guarantee by any of the Companies of any indebtedness for transactions borrowed money, other than indebtedness incurred from any of the Companies for members of Seller’s Group or incurred in the ordinary course of business and in amounts and on terms consistent with respect past practice; (h) settlement of any Litigation, pending or threatened, that has resulted or could reasonably be expected to joint ventures existing on result in any damages in excess of EUR 25,000 individually or EUR 100,000 in the date hereof valued at less aggregate or the imposition of any injunctive remedy or continuing obligation; (i) any investment by any of the Companies in, or the making of any loan to, any other company or entity (other than $10,000,000 the other of the Companies) exceeding EUR 250,000 individually or (C) for transactions valued at less than $10,000,000 in the aggregate; (ivj) none any capital expenditure by any of the Company PropertiesCompanies, Nonby additions or improvements to property, plant or equipment, in excess of EUR 250,000 individually or in the aggregate, except as provided in any plan or budget disclosed in writing to Purchaser prior to the date hereof; (k) any (i) lay-Controlling Properties off with respect to a significant part of the workforce of the Companies or Identified Assets shall have been sold (ii) any actual or otherwise transferredeffective transfer of a significant part of the workforce of the Companies or any member of Seller’s Group to or from any member of Seller’s Group or the Companies, exceptrespectively; (l) any damage, destruction or other casualty loss (Awhether or not covered by insurance) materially adversely affecting the business or assets of any of the Companies; (m) any material change to the policy or practice with respect to the Companies’ accounting methodology other than as required by law; (n) any material change in the Companies’ Tax election, method of Tax accounting or the settlement of any claim for Taxes; (o) conduct outside of the ordinary course of business, or, to Seller’s Best Knowledge, any change, event or development or series of changes, events or developments which individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect on the Companies; and (Bp) any agreement, whether in writing or otherwise, to a wholly owned Subsidiary do any of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]foregoing.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during During the period from and including the date of this Agreement to until the Closing, except as may be (w) disclosed in the following actions shall not have been taken without Documentation and/or in Schedule 9.2, or (x) required by applicable Law, (y) contemplated elsewhere in this Agreement or necessary to implement the prior written consent of each Purchaser transactions contemplated herein, or (z) consented to in writing by the PE Fund (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned withheld or delayed, having due consideration for the interests of the Group Companies), the Sellers, within the limits of their respective authority as shareholder, officer, director or employee of the Group Companies, undertake to: (a) ensure that the Group Companies carry on their activities only in the ordinary course of business (en bon père de famille) in substantially the same manner as heretofore conducted; (b) prevent the Target from declaring, setting aside, making or paying any dividend, interim dividend or other distribution in respect of its share capital (in cash or otherwise), or purchasing or redeeming any shares in its share capital, provided that, for the avoidance of doubt, nothing herein shall prevent the distribution mentioned in Section 5.6(d), the repurchase of Target Shares resulting from the exercise of Stock Options or any other repurchase of Target Shares by the Target on or prior to the Closing; and (c) prevent each of the Group Companies from (other than in favor of another Group Company or pursuant to the Minority Arrangements): (i) amending its Organizational Documents; provided that, for the Company avoidance of doubt, nothing herein shall not have prevent the Conversion of the Target; Table of Contents (ii) issuing or selling any shares in its share capital or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares; provided that, for the avoidance of doubt, nothing herein shall prevent (x) an Original Family Seller from transferring its Target Shares pursuant to Section 6.3 or (y) the exercise of the Stock-Options; (iii) incurring (other than in the ordinary course of business consistent with past practice) any material indebtedness for borrowed money (including through the issuance of debt securities) or granting any guarantee (other than (A) declared, set aside or paid any dividends on, or made any other distributions guarantees granted in respect of, any the ordinary course of the Company’s capital stock (other than dividends required business pursuant to retain REIT status or to avoid the imposition of entity level taxesOHADA Rules, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stockguarantees required by applicable Laws to carry out insurance brokerage activities, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) more generally in the ordinary course of business, (B) for transactions with respect or other commitment to joint ventures existing on the date hereof valued at less than $10,000,000 secure any loan or (C) for transactions valued at less than $10,000,000 in the aggregateborrowing or creating or allowing to come into being any Encumbrances; (iv) none of the Company Propertiesacquiring, Non-Controlling Properties selling, leasing, licensing, transferring or Identified Assets shall have been sold or otherwise transferred, except, abandonning (A) in the ordinary course of business, any significant asset or (B) to any interests in or securities issued by an Entity which is not a wholly owned Subsidiary Group Company for an amount in excess of the Company (€500,000 or merging or demerging with or into another Entity which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall is not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereofa Group Company; (v) [Intentionally Omittedamending its salary policy or giving its employees salary increases, benefits in kind, bonuses or other benefits of any kind whatsoever, other than in the context of normal activity and in accordance with past practices or hiring any employees or terminating any employment agreement of an employee with an annual gross salary exceeding €250,000;] (vi) agreing, resolving or commiting to do any action that would be reasonably likely to cause any of the conditions to completion of the transactions contemplated by this Agreement not to be satisfied; and (vii) committing in writing to take any of the actions set forth in the foregoing Paragraphs (i) through (vi).

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during During the period from October 5, 1998 until the date earlier of the Effective Time or the termination of this Agreement in accordance with its terms, VERITAS will continue to conduct its business and maintain its business relationships in the Closingordinary and usual course and consistent with past practice and, except as otherwise disclosed herein or in the following actions shall not have been taken VERITAS Disclosure Letter, it will not, without the prior A-52 54 written consent of each Purchaser (SSI, which consent such Purchaser agrees shall not be unreasonably withheld, conditioned withheld or delayed): , take any of the following actions where it would cause a Material Adverse Effect on VERITAS: (ia) the Company shall not have borrow any money except for (A) declaredamounts that are not in the aggregate material to the financial condition of VERITAS and its subsidiaries, set aside taken as a whole or paid any dividends on, or made any other distributions in respect of, (B) pursuant to existing credit facilities; (b) cause any of the Company’s capital stock VERITAS Assets to become subject to any Encumbrance, except for VERITAS Permitted Encumbrances and except for VERITAS Encumbrances arising under credit facilities existing as of October 5, 1998; (other than dividends required to retain REIT status or to avoid the imposition c) dispose of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof VERITAS Assets except (A) in the ordinary course of business, consistent with past practice; (Bd) for transactions with declare, set aside or pay any cash or stock dividend or other distribution in respect to joint ventures existing on the date hereof valued at less than $10,000,000 of capital stock, or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold redeem or otherwise transferred, except, acquire any of its capital stock (A) other than pursuant to arrangements with terminated employees or consultants in the ordinary course of business, (Bconsistent with past practice) to or issue capital stock representing more than a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 35% interest in the aggregatetotal outstanding securities of VERITAS; (e) waive or release any material claims against a third party; (f) merge, when taken together with all such sales and other transfers of Company Propertiesconsolidate or reorganize with, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions acquire any entity, except as set forth in Article II hereof; the VERITAS Disclosure Letter and except for transactions in which the aggregate consideration is below $100 million; (vg) [Intentionally Omitted;]amend the Certificate of Incorporation or Bylaws of VERITAS or any of its subsidiaries (except as set forth in the Form of the Amendment to the VERITAS Certificate of Incorporation attached hereto as Exhibit 5.3(g) or as otherwise expressly contemplated by this Agreement); (h) implement any layoffs or reductions in force involving a number of VERITAS employees such as will trigger WARN Act responsibilities or liabilities; (i) fail to pay or withhold any material Tax when due to be paid or withheld; or (j) agree to take, or permit any VERITAS entity to take or agree to take, or enter into negotiations with respect to, any of the actions described in the preceding clauses in this Section 5.3. Notwithstanding the foregoing, nothing in this Section 5.3 shall restrict or limit the conduct of any business of VERITAS or its direct or indirect subsidiaries or the use or disposition of the VERITAS Assets, other than as set forth in this Section 5.3. 5.4

Conduct of Business. The following shall be true in all material respects as From the Agreement Date to the earlier of the Closing Date: Except or the termination of this Agreement, except (i) as otherwise expressly provided or permitted, or contemplated, required or permitted by this Agreement Agreement, (ii) as may be required by applicable Law or the Plan Summary Term Sheet by a Governmental Authority of competent jurisdiction, (including, without limitation, in connection with implementing the iii) for matters contemplated by Article II hereof) or any order set forth on Section 5.2 of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement Company Disclosure Schedules and (iv) to the Closing, the following actions extent Buyer shall not have been taken without the prior written otherwise consent of each Purchaser in writing (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned delayed or delayed):conditioned), the Company agrees that: (a) The Company shall, and shall cause its Subsidiaries to, carry on their Business in the Ordinary Course of Company Business and use all Commercially Reasonable Efforts to (i) preserve intact their business organization and relationships with customers, suppliers, employees and others having business relationships with them, (ii) maintain in effect all of the Company Permits, (iii) keep available the services of its directors, officers and key employees, and (iv) manage its working capital in the Ordinary Course of Company Business. (b) The Company shall not, and shall not permit any of its Subsidiaries to: (i) modify, amend, suspend, abrogate or terminate the Company shall not have Organizational Documents; (Aii) declaredauthorize, set aside issue, sell, transfer or paid dispose of, or redeem, purchase or acquire, any Company Securities, or grant any stock appreciation, phantom stock, profit participation or similar rights in the Company; (iii) effect any recapitalization, reclassification, stock split or like change in its capitalization; (iv) effect or commence any liquidation, dissolution, scheme of arrangement, merger, consolidation, amalgamation, restructuring, reorganization or similar transaction involving the Company or any of its Subsidiaries; (v) declare or pay any dividends on, or made any authorize or make other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued other Company Securities; (vi) incur, terminate or authorized prepay any Indebtedness outside of the issuance Ordinary Course of Company Business; (vii) acquire or agree to acquire any real property, personal property (other than personal property at a total cost of less than $50,000] in the aggregate), corporation, partnership, limited liability company, other business organization or division thereof or any assets; (viii) sell, lease, pledge, assign, transfer or dispose of or incur any Lien on assets other than in the Ordinary Course of Company Business; (ix) enter into, amend or modify or terminate any Company Material Contract (or any Company Contract that would have been a Company Material Contract if in effect on the Agreement Date) or otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Subsidiaries; (x) other than in the Ordinary Course of Company Business, sell, lease, license, or otherwise transfer or dispose of, abandon or permit to lapse, fail to take any action necessary to maintain, enforce or protect, or create or incur any Lien on, any Company Owned Intellectual Property or Company Licensed Intellectual Property; (xi) other than in the Ordinary Course of Company Business (A) hire or retain any officer, employee or individual independent contractor of the Company or any of its Subsidiaries, (B) terminate the service of any officer, employee or individual independent contractor of the Company or any of its Subsidiaries, other securities than “for cause” or take any action that is reasonably likely to give rise to a “good reason” (or any term of similar import) claim; (xii) enter into any new line of business outside of the Business; (xiii) enter into any commitment for capital expenditures of the Company or its Subsidiaries in respect ofexcess of $50,000 for all commitments in the aggregate, in lieu each case, except for any such capital expenditures that are necessary to operate the Business in the Ordinary Course of Company Business; (xiv) grant or increase any compensation, bonus or benefits payable other than in substitution the Ordinary Course of Company Business, or grant or increase any severance entitlements; (xv) adopt, enter into or amend any Company Benefit Plan; (xvi) make any change in any method of accounting for financial reporting, except for any such change after the Agreement Date required by reason of a concurrent change in or interpretation of GAAP, as agreed to by its independent public accountants; (xvii) make or rescind any material Tax election, settle or compromise any material claim by a Tax Authority for Taxes payable by the Company or any of its Subsidiaries, or change any material Tax accounting method; (xviii) knowingly take or omit to take any action if such action or failure to act would be reasonably likely to prevent or impede the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; (xix) make any loans, advances or capital stockcontributions to, or investments in, any other Person; (xx) settle, or offer or propose to settle, (A) any Proceeding involving the Company or any of its Subsidiaries, (B) any stockholder Proceeding against the Company or any of its directors or officers or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of any Proceeding that relates to the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such sharesTransactions; (iixxi) the Company shall not have amended the Company’s certificate of incorporation terminate or bylaws cancel, let lapse, or amend or modify in any material respect, other than to increase renewals in the authorized shares Ordinary Course of capital stock;Company Business, any material insurance policies maintained by it which is not promptly replaced by a comparable amount of insurance coverage; or (iiixxii) neither the Company nor agree, resolve or commit to do any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]foregoing.

Conduct of Business. The following shall be true in all material respects as of From the date hereof through the Closing Date: Except , FRT and Sub shall, except as otherwise expressly provided or permitted, or contemplated, contemplated by this Agreement or as set forth on Schedule 6.1, or as consented to by RedChip in writing, operate the Plan Summary Term Sheet (including, without limitationFRT Business solely in the ordinary course of business and in accordance with past practice and will not, in connection any event, take any action inconsistent with implementing this Agreement, the matters Ancillary Agreements or the consummation of the Closing. Without limiting the generality of the foregoing, FRT shall not, nor shall FRT cause Sub to, except as specifically contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement or as consented to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser by RedChip in writing (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned withheld or delayed): (ia) the Company shall not have (A) declared, set aside or paid incur any dividends onindebtedness for borrowed money, or made any other distributions in respect ofassume, any of the Company’s capital stock guarantee, endorse (other than dividends required to retain REIT status endorsements for deposit or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) collection in the ordinary course of business), or otherwise become responsible for obligations of any other Person in excess of $50,000; (Bb) for transactions except as set forth on Schedule 6.1, issue or commit to issue any shares of their capital stock or any other securities or any securities convertible into shares of their capital stock or any other securities, including, without limitation, any options to acquire capital stock; (c) declare, pay or incur any obligation to pay any dividend on its capital stock or declare, make or incur any obligation to make any distribution or redemption with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregatecapital stock; (ivd) none make any change to their Certificates of the Company PropertiesIncorporation or Bylaws; (e) mortgage, Non-Controlling Properties or Identified Assets shall have been sold pledge or otherwise transferredencumber any Assets or sell, excepttransfer, (A) license or otherwise dispose of any Assets except for sales in the ordinary course of businessbusiness and consistent with past practice; (f) cancel, release or assign any indebtedness owed to them or any claims or rights held by them; (g) except as set forth on Schedule 6.1, make any investment or commitment of a capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other Person in excess of $30,000; (h) terminate any material Contract or make any material change in any material Contract; (i) other than any actions taken in connection with the Employment Agreements, enter into or modify any other employment Contract, (Bii) pay any compensation to or for any Employee, officer or director other than in the ordinary course of business and pursuant to existing employment arrangements, (iii) pay or agree to pay any bonus, incentive compensation, service award, severance, "stay bonus" or other like benefit, (iv) enter into or modify any other Employee Plan, or (v) modify the FRT Stock Option Plan; (j) enter into or modify any Contract or other arrangement with a wholly owned Subsidiary Related Party; (k) make any change in any method of accounting or accounting practice except as required by changes in GAAP or by Regulation S-X of the Company Exchange Act, as concurred by FRT's independent public accountants; (which Subsidiary shall be subject l) fail to comply with all Regulations applicable to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (except as would not reasonably be expected to result in a FRT Material Adverse Effect) and the “Sales Cap”); provided Business consistent with past practices; (m) fail to use its commercially reasonable efforts to (i) maintain the FRT Business, (ii) retain the FRT Employees so that such Employees will remain available to the Sales Cap shall not apply with respect to sales or transfers of Identified Assets Surviving Corporation on and after the Closing Date except to the extent that the same shall loss of such FRT Employees would not have been consummated in accordance a FRT Material Adverse Effect, (iii) maintain existing relationships with material suppliers and customers and others having business dealings with FRT and (iv) otherwise to preserve the express terms goodwill of the FRT Business so that such relationships and conditions set forth in Article II hereofgoodwill will be preserved on and after the Closing Date; (vn) [Intentionally Omittedmake or change any election in respect of Taxes, adopt or change any material accounting method in respect of Taxes, enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement, settle or compromise any claim, notice, audit report or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;] (o) commence any Action or other legal proceeding; (p) do any other act which would cause any representation or warranty of FRT in this Agreement to be or become untrue in any material respect or that is not in the ordinary course of business consistent with past practice; or (q) directly or indirectly take, agree to take or otherwise permit to occur any of the actions described in Sections 6.1(a) through 6.1(p).

Conduct of Business. The following shall be true in all material respects as From and after the date hereof (unless the Purchaser has given its prior written consent) and until the expiration date of the Closing Offer, as it may be extended pursuant to Section 3.1 (the "Expiration Date: Except "), except as otherwise expressly provided or permitted, or contemplated, contemplated by this Agreement or the Plan Summary Term Sheet Related Agreements, the Company shall, and shall cause each of its subsidiaries to, conduct its operations in the ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, seek to preserve intact its current business organizations, seek to keep available the service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement or in the Disclosure Schedule, prior to the Expiration Date, neither the Company nor any of its subsidiaries shall, without the prior written consent of the Purchaser: (a) amend its certificate of incorporation or bylaws (or other similar governing instrument) or amend, modify or terminate the Rights Agreement (other than as contemplated by Section 4.27); (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or any other securities convertible into or exchangeable for any stock or any equity equivalents (including, without limitation, in connection with implementing any stock options or stock appreciation rights), except for the matters contemplated by Article II hereofissuance or sale of Shares pursuant to outstanding Company Stock Options; (c) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): (i) the Company shall not have split, combine or reclassify any shares of its capital stock; (Aii) declareddeclare, set aside or paid pay any dividends ondividend or other distribution (whether in cash, stock or made property or any other distributions combination thereof) in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of stock; (iii) make any other securities actual, constructive or deemed distribution in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or otherwise make any rightspayments to stockholders in their capacity as such; or (iv) redeem, warrants repurchase or options to otherwise acquire any such sharesof its securities or any securities of any of its subsidiaries (including redeeming any Rights); (d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its subsidiaries; (e) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any subsidiary; (f) except as permitted under the Loan Agreement, (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings under existing lines of credit in the ordinary and usual course of business consistent with past practice and in amounts not material to the Company and its subsidiaries taken as a whole; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the Company shall not have amended the Company’s certificate obligations of incorporation any other person; (iii) make any loans, advances or bylaws capital contributions to, or investments in, any other person (other than to increase the authorized wholly owned subsidiaries of the Company or customary loans or advances to employees in the ordinary and usual course of business consistent with past practice and in amounts not material to the maker of such loan or advance); (iv) pledge or otherwise encumber shares of capital stockstock of the Company or its subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any material Lien thereupon; (iiig) neither except as may be required by Law or as contemplated by this Agreement, enter into, adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund, award or other arrangement for the benefit or welfare of any director, officer or employee in any manner or increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units) or take any action to accelerate the vesting of any Company Stock Options; (h) acquire, sell, lease or dispose of any assets outside the ordinary and usual course of business consistent with past practice or any assets which in the aggregate are material to the Company nor and its subsidiaries taken as a whole, enter into any commitment or transaction outside the ordinary and usual course of business consistent with past practice or grant any exclusive distribution rights; (i) except as may be required as a result of a change in Law or in GAAP, change any of the accounting principles or practices used by it; (j) revalue in any material respect any of its Subsidiaries shall have acquired assets, including, without limitation, writing down the value of inventory or agreed to acquire by merging writing-off notes or consolidating with, or by purchasing a substantial portion of the stock, or accounts receivable other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) than in the ordinary and usual course of business, (B) for transactions business consistent with respect to joint ventures existing on the date hereof valued at less than $10,000,000 past practice or (C) for transactions valued at less than $10,000,000 in the aggregateas required by GAAP; (ivk) none except for the acquisition of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]QMS Europe B.V.

Conduct of Business. The following shall be true in all material respects as of (a) From the Closing Date: Except Execution Date until the Closing, except as otherwise expressly provided or permitted, or contemplated, contemplated by this Agreement or to the Plan Summary Term Sheet extent Redwood shall otherwise consent in writing, the Xxxxxxxx Parties shall: (includinga) conduct the Businesses in the Ordinary Course, without limitation(b) use commercially reasonable efforts to maintain and preserve intact the organization, in connection with implementing the matters contemplated by Article II hereof) or any order employees and advantageous business relationships of the Bankruptcy Court in effect on Business and retain the date services of its officers and key employees, and (c) take no action which would materially adversely affect or materially delay the ability of the Redwood Parties to obtain any necessary Approvals for the transactions contemplated hereby or to perform their covenants under this Agreement, during . (b) During the period from the date of Execution Date to the Closing Date, except as expressly contemplated or permitted by this Agreement to the Closingor as expressly required by applicable Law, the following actions ERC shall not, and ERC shall not have been taken permit any of the Transferred Landowners to, without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):Redwood: (i) issue any debt securities or otherwise incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the Company shall not have (A) declared, set aside or paid obligations of any dividends onother Person, or made make any other distributions loans, advances or renewals thereof in respect ofexcess of $250,000, except for any of debtor-in-possession credit facility approved by the Company’s capital stock Bankruptcy Court (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes“DIP Financing”) and any draws thereunder; (ii) adjust, (B) split, combined combine, reclassify, convert or reclassified exchange any of its capital stock or issued equity interests or authorized the issuance of any other securities in respect of, in lieu of or in substitution obligations convertible into or exchangeable for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stockequity interests; (iii) neither the Company nor make, declare or pay any dividend or make any other distribution on, whether payable in cash, stock, equity interests, property or otherwise any of its Subsidiaries shall capital stock or equity interests or any securities or obligations convertible into or exchangeable for any shares of its capital stock or equity interests; (iv) redeem, purchase or otherwise acquire, any of its capital stock or equity interests or any securities or obligations convertible into or exchangeable for any shares of its capital stock or equity interests; (v) grant any stock appreciation rights, restricted stock, bonus stock, stock options or any similar awards or rights in respect of any of its capital stock or equity interests or any securities or obligations convertible into or exchangeable for any shares of its capital stock or equity interests; (vi) sell, pledge or encumber any additional capital stock or equity interests or any securities or obligations convertible into or exchangeable for any shares of its capital stock or equity interests; (vii) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets, except for Liens granted to secure the DIP Financing; (viii) make any investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (ix) increase or decrease its equity ownership position in any Person; (x) except in the Ordinary Course, amend or terminate any Material Contract; (xi) except in the Ordinary Course, enter into any Contract that, if it had existed on the Execution Date, would have acquired been a Material Contract; (xii) establish, adopt, amend or agreed terminate any plan or any agreement, arrangement or plan of any kind with, or for the benefit of, any officers, directors, members, managers or Employees, including any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination and severance agreement, trust, fund, policy or arrangement; (xiii) pay any bonus to any officers, directors, members, managers or Employees; (xiv) increase in any manner the compensation or fringe benefits of any officers, directors, members, managers or Employees; (xv) settle, agree to settle or compromise any Action (whether or not commenced prior to the Execution Date and including any Action relating to this Agreement or the Transactions) for an amount in excess of $250,000; (xvi) amend its Organizational Documents; (xvii) enter into any new line of business, discontinue any line of business, relocate or terminate any operations or otherwise materially change the business currently conducted by it; (xviii) acquire or agree to acquire, by merging or consolidating with, or by purchasing an equity interest in, or all or a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregatePerson; (ivxix) none incur any capital expenditures in excess of the Company Properties, Non-Controlling Properties $250,000 individually or Identified Assets shall have been sold or otherwise transferred, except, (A) in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 1,000,000 in the aggregate, when taken together except in accordance with all such sales any cash receipt and other transfers disbursement budget approved by the lender of Company Propertiesthe DIP Financing; (xx) change any Tax election, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply file any amended Tax Return, enter into any closing agreement, settle or compromise any liability with respect to sales Taxes, agree to any adjustment of any Tax attribute, change (or transfers make a request to any taxing authority to change) any of Identified Assets its methods of reporting income or deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for the taxable year ended December 31, 2008; (xxi) take any action with respect to changing its accounting methods, principles or practices, other than changes required by applicable Law or GAAP or regulatory accounting as concurred in by ERC’s independent accountants; (xxii) commit any act or omission which could reasonably be expected to constitute a material breach or default under any Material Contract; (xxiii) take any action that is intended or could reasonably be expected to violate any applicable Law or result in any of the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof;VIII not being satisfied in a timely manner; or (vxxiv) [Intentionally Omitted;]agree or commit to do any of the foregoing.

Conduct of Business. The following shall be true in all material respects as of From and after the Closing Date: Except date hereof until the Closing, except as otherwise expressly provided or permittedcontemplated by this Agreement, or contemplatedas consented to in writing by the Purchaser in the case of an action by the Company, or by this Agreement or the Plan Summary Term Sheet (including, without limitationCompany in the case of an action by the Purchaser, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during the period from the date of this Agreement either event such consent not to the Closing, the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned each of the Purchaser and the Company shall: (a) use reasonable commercial efforts to preserve its business, operations, physical facilities, working conditions and its business relationships with customers, suppliers, licensors, licensees, contractors and other persons with whom it has significant business relations; (b) not take any action that would cause a breach of the representations and warranties contained herein; (c) not amend its Articles of Incorporation or delayed):Bylaws (or other similar governing instrument); (d) not split, combine or reclassify any of its shares, declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its equity interests, make any other actual or constructive distribution in respect of its interests or otherwise make any payments to holders in their capacity as such, or redeem or otherwise acquire any of its securities or any other securities; (e) not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or otherwise permit its corporate existence to be suspended, lapsed or revoked; (f) not create or form any Subsidiary; (g) other than in the ordinary course of its business, (1) incur or assume any Liability in excess of US$10,000; (2) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person; (3) make any loans, advances or capital contributions to or investments in any other Person; nor (4) pledge or otherwise Encumber its shares; (h) not acquire, sell, lease, license, transfer or otherwise dispose of any assets in any single transaction or series of related transactions having a fair market value in excess of US$10,000 in the aggregate or that are otherwise material to it other than in the ordinary course of business; (i) the Company shall not have (A1) declaredacquire (by merger, set aside consolidation or paid any dividends on, or made any other distributions in respect of, any acquisition of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (Cassets) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company partnership or other entity or division thereof except or any equity interest therein; (A2) amend, modify, waive or terminate any right under any material contract in any material way; nor (3) authorize any new capital expenditure or expenditures that individually is in excess of US$5,000 or in the aggregate are in excess of US$10,000; (j) not enter into any Contract other than in the ordinary course of its business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (ivk) none issue, promise or contract to issue any securities or instruments convertible into securities of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, such Person; or (Al) other than in the ordinary course of its business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply make any change with respect to sales the compensation or transfers benefits of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (v) [Intentionally Omitted;]any officer, director or Employee or Former Employee.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereofa) or any order of the Bankruptcy Court in effect on From the date of the Agreement, during the period from the date of this Agreement to hereof until the Closing, except as expressly permitted hereby, BuyGolf shall not, and the following actions Stockholders shall not have been taken permit BuyGolf to, without the BC's prior express written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed):consent: (i) the Company shall not have (A) declared, set aside or paid incur any dividends onadditional indebtedness, or made guarantee any other distributions in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status indebtedness or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance obligation of any other securities in respect ofparty, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, and which amount BuyGolf agrees to repay immediately prior to the Closing; (Bii) issue, redeem, pledge, sell or repurchase any capital stock of BuyGolf or securities convertible into its capital stock or grant or issue any options, warrants or rights to subscribe for transactions with respect its capital stock or securities convertible into its capital stock or commit to joint ventures existing on do any of the date hereof valued at less than $10,000,000 foregoing; (iii) enter into or (C) for transactions valued at less than $10,000,000 in the aggregateterminate any material agreement or arrangement; (iv) none increase the compensation or bonuses payable or to become payable to any officers, employees or agents of the Company PropertiesBuyGolf, Non-Controlling Properties or Identified Assets shall have been sold adopt or otherwise transferredamend any employee benefit plan or arrangement; (v) enter into any employment contract or agreement with any existing or prospective employee which is not terminable at will; (vi) pay any obligation or liability, exceptfixed or contingent, other than current liabilities or except as such payment becomes due; (Avii) cancel, without full payment, any note, loan or other obligation owing to BuyGolf, or waive any rights of material value; (viii) acquire or dispose of any properties, assets or business except in the ordinary course of its business; (ix) create or suffer to be imposed any lien, mortgage, security interest or other charge on or against the properties or assets of BuyGolf, other than in the ordinary course of business consistent with BuyGolf's past practices, or the BuyGolf Common Stock; (Bx) engage in any activities or transactions outside the ordinary course of BuyGolf's e-commerce business as conducted at the date hereof; (xi) make or adopt any change in the Charter or Bylaws of BuyGolf as in force and effect on the date hereof; (xii) declare or pay any dividends on or make any other distributions in respect of any shares of its capital stock; or (xiii) pay, agree to a wholly owned Subsidiary pay or make any accrual or arrangement for payment of any pension, retirement allowance or other employee benefit pursuant to any plan, agreement or arrangement to any officer, director or employee. (b) From the Company date hereof until the Closing, except as expressly permitted hereby, BuyGolf shall, and the Stockholders shall cause BuyGolf to, unless otherwise expressly consented to in writing by BC: (which Subsidiary i) maintain the existing insurance policies of BuyGolf, unless comparable insurance is substituted therefor, and shall be subject not take any action to terminate or modify those insurance policies; (ii) maintain the same restrictions under this subsection books and records of BuyGolf consistent with past practices and policies and in accordance with GAAP; (iii) maintain in good working condition, ordinary wear and tear excepted, and in compliance in all material respects with all applicable laws and regulations, all fixed assets owned, leased or operated, as the case may be, by BuyGolf; (iv))) observe and perform, and (C) for sales remain in compliance with, all obligations of BuyGolf in agreements and contracts the breach or other transfers, the net proceeds violation of which shall not exceed $1,000,000,000 would have, individually or in the aggregate, when taken together a material adverse effect and not enter into any agreements or contracts which would require payments by BuyGolf of more than Fifty Thousand Dollars ($50,000) over any period of twelve (12) months, except for inventory purchased in the ordinary course of business and disclosed in advance to BC and customer contracts and purchase orders entered in the ordinary course of business consistent with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”)BuyGolf's past practices; provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof;and (v) [Intentionally Omitted;]maintain compliance with the terms and conditions of all material contracts or licenses held by BuyGolf or under which it operates or conducts its business and use best efforts to maintain all such material contracts and licenses in full force and effect.

Conduct of Business. The following shall be true in all material respects as of the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, contemplated by this Agreement or to the Plan Summary Term Sheet (includingextent that Parent otherwise consents in writing, without limitationwhich consent shall not be unreasonably conditioned, in connection with implementing the matters contemplated by Article II hereof) delayed or any order of the Bankruptcy Court in effect on the date of the Agreementwithheld, during the period from the date of this Agreement until the Closing or earlier termination of this Agreement pursuant to ARTICLE IX, the Company covenants and agrees that the Company will not: (a) fail to act in the ordinary course of business and consistent with past practices of the Company; (b) take any action, or fail to take any action, that would be required to be listed on Section 3.22 of the Disclosure Schedule if such action or failure to act had occurred after the date of the Most Recent Balance Sheet Date and prior to the Closingdate hereof; (c) (i) merge or consolidate with or into any other Person; (ii) dissolve or liquidate; (iii) sell, lease or exclusively license all or substantially all of its assets; or (iv) permit the following actions shall not sale or transfer of any shares of capital stock or interests therein; (d) issue, sell, pledge, dispose of, encumber or deliver (whether through the issuance or granting of any options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock or other securities of any class (except for the issuance of shares of Common Stock pursuant to the exercise of Company Options) or any options, warrants, calls, rights, commitments, agreements, arrangements or undertakings to issue, deliver or sell, or cause to be issued, delivered or sold, shares of capital stock or other securities of any class (except for the issuance of certificates to any Stockholder in replacement of lost certificates); (e) change, amend, modify or repeal any provision of the Company Charter Documents; (f) guarantee, endorse or otherwise become liable or responsible for the obligations of any other Person (other than endorsements of checks in the ordinary course) or make any loans, advances or capital contributions to, or investments in, any Person; (g) make any settlement of or compromise any Tax liability, change any Tax election or Tax method of accounting or make any new Tax election or adopt any new Tax method of accounting; 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; or take any other action that would have been taken without the prior written consent effect of each Purchaser increasing the Tax liability of any Company or any Subsidiary for any period after the Closing Date or decreasing any Tax asset or attribute of any Company or Subsidiary existing on the Closing Date; (which consent such Purchaser agrees shall not be unreasonably withheldh) except as required by GAAP or Applicable Laws, conditioned change any of the accounting principles or delayed):practices used by it; (i) change its practices and procedures in any material respect with respect to the Company shall not have (A) declared, set aside collection of accounts receivable or paid offer to discount the amount of any dividends on, account receivable or made extend any other distributions in incentive (whether to the account debtor or any employee or third party responsible for the collection of receivables) with respect ofthereto, any of the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such shares; (ii) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof except (A) in the ordinary course of business, (B) for transactions with respect to joint ventures existing on the date hereof valued at less than $10,000,000 or (C) for transactions valued at less than $10,000,000 in the aggregate; (ivj) none fail to pay any Indebtedness or any other accounts payable as they become due, or change in any material respect its existing practices and procedures for the payment of Indebtedness or other accounts payable; (k) commence a lawsuit, administrative proceeding, mediation, arbitration or other similar proceeding other than relating to or arising out of this Agreement or the Company Propertiesagreements and transactions contemplated hereby, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) other than actions for collection instituted in the ordinary course of business; (l) settle any Legal Proceeding; (m) reduce the amount of insurance coverage provided by existing insurance policies; (n) make any claim under or reduce the amount of any insurance coverage provided by existing insurance policies; (o) make any loan to, or enter into any transaction with, any of its Stockholders, directors, officers or employees, including any member of his or her immediate family or Affiliates, as applicable, other than transactions contemplated by this Agreement; (Bp) enter into any collective bargaining agreement; (q) declare, pay or set aside assets for any dividend or otherwise or declare or make any other distribution with respect to a wholly owned Subsidiary its capital stock, or purchase, redeem or acquire any shares of capital stock or other securities except as contemplated by this Agreement; (r) hire or terminate any management-level employee, or grant any bonus, commission or salary increase to any current employee outside the ordinary course of business; (s) accelerate, amend or change the period of exercisability or vesting of the Company Options or any Company Warrants, authorize cash payments in exchange for the Company Options or otherwise amend, waive or modify any of the terms or provisions of any Company Option or the Stock Plan, other than as contemplated by this Agreement; (which Subsidiary shall be subject t) make any payment or agreement relating to the same restrictions under this subsection surrender, cancellation, amendment or agreement not to exercise any stock option or warrant issued by the Company; (iv)), and (Cu) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”)enter into any Material Contract; provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof;or (v) [Intentionally Omitted;]approve, propose, authorize any of, or commit or agree to take any of, the foregoing actions.

Conduct of Business. The following From the date hereof until the Closing, the Company and the Bank shall be true conduct the Bank’s retail branch banking operations in the ordinary course as currently operated and in conformity in all material respects with all Laws and shall use all reasonable efforts to preserve intact such operations and relationships with third parties and their respective employees; provided, however, that nothing herein shall limit the Company’s, the Bank’s or any of their Subsidiaries’ ability to (i) take actions to comply with the Cease and Desist Orders and (ii) consummate the Sale Transactions. Except as set forth in Section 5.2 of the Closing Date: Except Company Disclosure Schedule or as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the AgreementSale Transactions, during the period from the date of this Agreement to hereof until the Closing, neither the following actions shall not have been taken without Company nor the prior written consent of each Purchaser Bank shall: (which consent such Purchaser agrees shall not be unreasonably withheld, conditioned or delayed): a) (i) make any distributions in cash or in kind to its stockholders (other than distributions by the Company shall not have Bank) or (ii) issue or repurchase any shares of its capital stock. (b) amend or otherwise change its certificate of incorporation or bylaws or equivalent organizational documents other than as contemplated by this Agreement; (c) issue, sell, pledge, dispose of, or otherwise subject to any encumbrance (A) declared, set aside or paid any dividends onshares of its capital stock, or made any options, warrants, convertible securities or other rights of any kind to acquire any such shares, or any other distributions ownership interest in respect of, any of the Company’s capital stock (other than dividends required to retain REIT status Company or to avoid the imposition of entity level taxes, Bank or (B) any assets of the Company or the Bank relating to the Bank’s retail branches, or any interests received in the Sale Transactions; (d) reclassify, combine, split, combined subdivide or reclassified redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock or issued or authorized the issuance of make any other securities in change with respect of, in lieu of or in substitution for to its capital stock, or (C) purchased, redeemed or otherwise acquired (other than as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such sharesstructure; (iie) the Company shall not have amended the Company’s certificate of incorporation or bylaws other than to increase the authorized shares of capital stock; (iii) neither the Company nor any of its Subsidiaries shall have acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, associationlimited liability company, other business organization or division thereof or any material amount of assets (other than investment securities), or enter into any joint venture, limited liability company strategic alliance, exclusive dealing, non-competition or similar contract or arrangement (other than extensions of exclusivity arrangements in effect on the date hereof); (f) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other entity reorganization, or division thereof otherwise alter its corporate structure; (g) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, except in the ordinary course of business; provided that in no event shall the Company or the Bank (A) incur, assume or guarantee any long-term indebtedness for borrowed money or (B) make any optional repayment of any indebtedness for borrowed money; (h) amend, waive, or modify any material provision of consent to the termination of any contract that is material to the Company or the Bank, or amend, waive, modify or consent to the termination of the Company’s or the Bank’s material rights thereunder, or enter into any contract other than in the ordinary course of business; (i) enter into any lease of real or personal property or any renewals thereof involving a term of more than one year or rental obligation exceeding $100,000 per year in any single case; (j) increase the compensation payable or to become payable or the benefits provided to its directors, officers or employees, except for normal merit and cost-of-living increases consistent with past practice in salaries or wages of employees of the Company or any of its Subsidiaries who are not directors or executive officers of the Company or any of its Subsidiaries and who receive less than $125,000 in total annual cash compensation from the Company or any of its Subsidiaries, or grant any severance or termination payment to, or pay, loan or advance any amount to, any director, officer or employee of the Company or any of its Subsidiaries, or establish, adopt, enter into or materially amend any material benefit plan; (k) enter into any contract with any Related Party of the Company or the Bank; (l) make any change in any method of accounting or accounting practice or policy, except as required by GAAP; (m) make, revoke or modify any material Tax election, settle or compromise any material Tax liability or file any material Return other than on a basis consistent with past practice; (n) pay, discharge or satisfy any material claim, liability or obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business, (B) for transactions with respect to joint ventures existing of liabilities reflected or reserved against on the date hereof valued at less than $10,000,000 Balance Sheet or (C) for transactions valued at less than $10,000,000 in the aggregate; (iv) none of the Company Properties, Non-Controlling Properties or Identified Assets shall have been sold or otherwise transferred, except, (A) subsequently incurred in the ordinary course of business, (B) to a wholly owned Subsidiary of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv)), and (C) for sales or other transfers, the net proceeds of which shall not exceed $1,000,000,000 in the aggregate, when taken together with all such sales and other transfers of Company Properties, Non-Controlling Properties and Identified Assets (the “Sales Cap”); provided that the Sales Cap shall not apply with respect to sales or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions set forth in Article II hereof; (vo) [Intentionally Omittedcancel, compromise, waive or release any material right or claim other than in the ordinary course of business;] (p) commence or settle any material Action, including the Cease and Desist Orders; (q) take any action, or intentionally fail to take any action, that would cause any representation or warranty made by the Company in this Agreement to be untrue or result in a breach of any covenant made by the Company or the Bank in this Agreement or the Exchange and Shareholder Rights Agreement, or that has or would reasonably be expected to have a Material Adverse Effect; or (r) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the foregoing.

Conduct of Business. The following shall be true in all material respects as 6.1 Conduct of Business by Vaxis Pending the Closing Date: Except as otherwise expressly provided or permitted, or contemplated, by this Agreement or the Plan Summary Term Sheet (including, without limitation, in connection with implementing the matters contemplated by Article II hereof) or any order of the Bankruptcy Court in effect on the date of the Agreement, during Transaction. During the period from the date of this Agreement to and continuing until the Closing, except as set forth in or contemplated by this Agreement, as agreed to in writing by Cellegy, or as set forth in Section 6.1 of the following actions shall not have been taken without the prior written consent of each Purchaser (which consent such Purchaser agrees shall not be unreasonably withheldDisclosure Schedule, conditioned or delayed):Vaxis: (i) shall conduct its operations in the Company shall not have (A) declared, set aside or paid any dividends on, or made any other distributions in respect of, any of ordinary course consistent with the Company’s capital stock (other than dividends required to retain REIT status or to avoid the imposition of entity level taxes, (B) split, combined or reclassified any of its capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for its capital stock, or (C) purchased, redeemed or otherwise acquired (other than manner as set forth on Section 7.1(r)(i) of the Company Disclosure Letter or pursuant to Company Benefit Plans) any shares of its capital stock or any rights, warrants or options to acquire any such sharesheretofore conducted; (ii) shall use commercially reasonable efforts, to preserve intact its business organizations and goodwill, keep available the Company shall not have amended the Company’s certificate services of incorporation or bylaws other than to increase the authorized shares of capital stockits officers and employees and maintain satisfactory relationships with those persons having business relationships with it; (iii) neither the Company nor any shall not amend its Articles of its Subsidiaries Incorporation or Bylaws or comparable governing instruments; (iv) shall have acquired not (A) acquire or agreed agree to acquire by merging or consolidating with, or by acquiring any equity interest in or purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof except thereof, or (AB) acquire or agree to acquire assets other than in the ordinary course of businessbusiness or (C) release or relinquish or agree to release or relinquish any material contract rights; (v) shall not effect any stock split or otherwise change its capitalization or issue any shares of its capital stock or securities convertible into or exchangeable or exercisable for shares of its capital stock, except upon exercise of options outstanding as of the date hereof to purchase Vaxis Common Shares under the Vaxis Stock Options; (Bvi) for transactions with respect to joint ventures shall not grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof valued at less than $10,000,000 hereof, to acquire any shares or (C) for transactions valued at less than $10,000,000 in the aggregateother securities of Vaxis or amend or otherwise modify any outstanding options or warrants; (ivvii) none shall not set aside, make or pay any dividend or other distribution, payable in cash, shares, property or otherwise, with respect to any of the Company Propertiesits capital, Non-Controlling Properties or Identified Assets shall have been sold to redeem, purchase or otherwise transferredacquire, exceptdirectly or indirectly, any of its capital, except for the payment to certain employees of Vaxis cash in lieu of stock options to a maximum of $22,000 in Canadian funds; (Aviii) shall not, except in the ordinary course of businessbusiness consistent with past practice, (Bx) to a wholly owned Subsidiary incur, create, assume or otherwise become liable for borrowed money or assume, guarantee, endorse or otherwise become responsible or liable for the obligations of the Company (which Subsidiary shall be subject to the same restrictions under this subsection (iv))any other individual, and (C) for sales corporation or other transfers, the net proceeds of which entity or (y) make any loans or advances to any other Person; (ix) shall not exceed $1,000,000,000 (x) make, revoke or change any material election with respect to Taxes unless required by applicable law or (y) settle or compromise any material Tax liability; (x) shall not authorize capital expenditures which are, in the aggregate, when taken together in excess of $50,000; (xi) shall not, except for the payment of reasonable professional fees relating to the Transaction or otherwise and reasonable fees to financial advisors (which financial advisory fees have heretofore been disclosed or are otherwise acceptable, to Cellegy), pay, discharge or satisfy any Claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in an amount in excess of $50,000 in the aggregate, other than the payments, discharges or satisfactions, in the ordinary course of business and consistent with all such sales past practice, of liabilities reflected or reserved against in Balance Sheet (as defined in Section 4.5 hereto) or subsequently incurred in the ordinary course of business and consistent with past practice or collect, or accelerate the collection of, any amounts owed (including accounts receivable) other transfers than collection in the ordinary course; (xii) shall not, except in the ordinary course of Company Propertiesbusiness or as otherwise expressly contemplated hereby, Non-Controlling Properties and Identified Assets (grant or acquire any material licenses to use any Intellectual Property Rights or unpatented inventions set forth in the “Sales Cap”)Disclosure Schedule; provided that the Sales Cap Vaxis shall not apply with respect grant any material licenses to sales use any material Intellectual Property Rights or transfers of Identified Assets to the extent the same shall have been consummated in accordance with the express terms and conditions unpatented inventions so set forth in Article II hereofwithout the prior written consent of Cellegy, which consent shall not be unreasonably withheld; (vxiii) [Intentionally Omittedshall not allow any insurance policy naming it as a beneficiary or a loss payee to be cancelled, terminated or materially altered, except in the ordinary course of business and consistent with past practice and following written notice to Cellegy (provided that an insurer refusing to renew a policy shall not be deemed a breach of this covenant);] (xiv) shall not enter into any hedging, option, derivative or other similar transaction; (xv) shall notify Cellegy a reasonable time in advance of, and shall permit a representative of Cellegy to review or participate in, any communications, meetings, or correspondence between Vaxis and the FDA, Health Canada, the European Agency for the Evaluation of Medical Products or similar Canadian or other regulatory agency and in any of the Vaxis' internal planning meetings that cover substantive issues relating to products or strategic partners, except, in each case, as may be inconsistent with applicable law or regulation; and (xvi) shall not agree, in writing or otherwise, to take any of the foregoing actions.