Common use of Covenants of Company Clause in Contracts

Covenants of Company. The Company covenants and agrees that, so long as this Debenture shall be outstanding, it will: (i) Promptly pay and discharge all lawful taxes, assessments, and governmental charges or levies imposed upon the Company or upon its income and profits, or upon any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contested; (ii) Do or cause to be done all things reasonably necessary to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful in the conduct of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred in the ordinary course of business, nor incur any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right of payment to the indebtedness evidenced by this Debenture.

Covenants of Company. The Company covenants and agrees as to itself and its Subsidiaries (as applicable) that, so long except as specifically set forth in Section 3.1 of the Company Disclosure Schedules, from the date hereof and continuing until the Acceptance Date, except as (1) expressly contemplated or permitted by this Debenture Agreement, (2) as required by Law or (3) to the extent Purchaser shall otherwise consent in writing, which decision regarding consent shall not be outstanding, it willunreasonably delayed or withheld: (a) Company and its Subsidiaries shall conduct their respective businesses only in the ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, it and its Subsidiaries shall use their respective commercially reasonable efforts to (i) Promptly pay subject to prudent management of workforce needs and discharge ongoing programs currently in force, preserve their business organization intact and maintain their existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates, (ii) maintain and keep their material properties and assets in good repair and condition, subject to ordinary wear and tear, (iii) comply with all lawful taxes, assessments, material Laws and (iv) maintain in effect all material governmental charges Permits pursuant to which it or levies imposed upon the Company or upon its income and profits, or upon any of its property, before the same Subsidiaries currently operates; (b) Company and its Subsidiaries shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien not (i) amend its articles of incorporation or charge upon such properties by laws or any part thereofcomparable governing instruments of any of its Subsidiaries; (ii) split, providedcombine or reclassify its outstanding shares of capital stock; (iii) declare, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on or pay any dividend or other distribution payable in cash, stock, property or otherwise in respect of any capital stock (other than dividends from its books adequate reserves direct or indirect wholly-owned Subsidiaries to it or a wholly-owned Subsidiary); (iv) repurchase, redeem or otherwise acquire any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock (other than for the repurchase of unvested Shares, unvested options to purchase Shares or other unvested equity awards under Company Stock Plans in connection with the termination of employment); or (v) enter into any agreement with respect to any such tax, assessment, charge, levy or claim so contestedthe voting of its capital stock; (iic) Do neither Company nor any of its Subsidiaries shall issue, sell, grant, pledge, dispose of or cause otherwise encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to be done all things reasonably necessary acquire, any shares of its capital stock of any class or any Voting Debt (other than shares of capital stock issuable pursuant to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to options or restricted share units (whether or not vested) outstanding on the Companydate hereof under the Company Stock Plans); (iiid) At all times reasonably maintain, preserve, protect and keep its property used or useful in the conduct neither Company nor any of its business in good repairSubsidiaries shall incur or assume any indebtedness for borrowed money or guarantee any indebtedness or issue or sell any debt securities or options, working order and conditionwarrants, and from time calls or other rights to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct acquire any debt securities of Company or any of its business; (iv) To the extent necessary for the operation of its businessSubsidiaries, keep adequately insured other than borrowings by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred in the ordinary course of business, nor incur business consistent with past practice in amounts not in excess of $1,000,000 in the aggregate outstanding at any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right time under Company’s existing credit agreement listed on Section 2.1(q)(i)(B)(5) of payment the Company Disclosure Schedule and guarantees of such borrowings issued by the Subsidiaries to the extent required under the terms of such credit facility; (e) neither Company nor any of its Subsidiaries shall, other than in the ordinary and usual course of business consistent with past practice or as contemplated in Company’s operating plan provided to Purchaser (the “Company Operating Plan”) or other than transactions not in excess of $1,000,000 in the aggregate in any calendar year, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any of its property or assets (including capital stock of any of its Subsidiaries); (f) neither Company nor any of its Subsidiaries shall, by any means, make any acquisition of, or investment in, assets or stock (whether by way of merger, consolidation, tender offer, share exchange, capital contribution or other activity), or loan or advance to any Person, in any transaction or any series of transactions (whether or not related) for an aggregate purchase price or prices, including the assumption of any debt, in excess of $1,000,000 in the aggregate in any calendar year, except for acquisitions or loans mandated by binding legal commitments existing on the date hereof as listed on Section 3.1(f) of the Company Disclosure Schedule; (g) neither Company nor any of its Subsidiaries shall make any capital expenditure or expenditures which (A) involves the purchase of real property or (B) is in excess of $500,000 individually or $1,500,000 in the aggregate, except for any such capital expenditures provided for in the Company Operating Plan; (h) neither Company nor any of its Subsidiaries shall (i) materially modify, amend, or terminate any Material Contract, (ii) waive, release, relinquish or assign any such Material Contract (or any of the material rights of Company or any of its Subsidiaries thereunder), right or claim, that is material to Company and its Subsidiaries taken as a whole, (iii) enter into any contract or agreement that limits or restricts Company or any of its Subsidiaries or any of their future affiliates from engaging or competing in the business in any location, (iv) enter into any collective bargaining agreement or other labor agreement, or (v) cancel or forgive any material indebtedness evidenced owed to Company or any of its Subsidiaries; (i) Company and its Subsidiaries shall not (i) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization or other similar reorganization of Company or any Subsidiary of Company, or (ii) other than in the usual and ordinary course of business consistent with past practice, accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates; (j) subject to Section 1.4, neither Company nor any of its Subsidiaries shall terminate, establish, adopt, amend (including by this Debenturereducing an exercise price or extending a term), enter into, make any new grants or awards under, amend or otherwise modify any Compensation and Benefit Plans (other than issuances of shares of common stock pursuant to existing grants pursuant to the terms of stock plans as in effect on the date hereof in the ordinary and usual course of the operation of such stock plans consistent with past practice), or increase the salary, wage, bonus, benefits, or other compensation of any employees, or waive any of its rights under, or accelerate the vesting under, any such Compensation and Benefit Plan programs, policies or agreement evidencing any outstanding stock option or other right to acquire capital stock of Company or any restricted stock purchase agreement or any similar or related contract, including granting or providing any severance or termination payments or benefits to any current or former director, executive officer or employee of Company or any of its Subsidiaries, except (i) in the ordinary and usual course of business consistent with past practice, applicable Law or existing policy or agreement (which shall include normal periodic performance reviews and related compensation and benefit increases), (ii) for annual reestablishment of Compensation and Benefit Plans and the provision of individual compensation or benefit plans and agreements for newly hired or appointed officers and employees or (iii) for actions necessary to satisfy existing contractual obligations under Compensation and Benefit Plans or agreements existing as of the date hereof; (k) neither Company nor any of its Subsidiaries shall 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 (i) in accordance with their terms of liabilities, claims or obligations reflected or reserved against in the most recent consolidated financial statements (or the notes thereto) of Company included in the Company Reports, (ii) incurred since the date of such financial statements in the ordinary course of business consistent with past practice or (iii) in an amount less than $250,000 individually or $1,000,000 in the aggregate; (l) neither Company nor any of its Subsidiaries shall issue any broadly distributed communication of a general nature to employees (including general communications relating to benefits and compensation) or customers without the prior approval of Purchaser, except for communications in the ordinary course of business that do not relate to the Offer; (m) neither Company nor any of its Subsidiaries shall settle or compromise any litigation or proceeding material to Company and its Subsidiaries taken as a whole; (n) Company shall, and shall cause its Subsidiaries to, maintain with financially responsible insurance companies (or through self insurance) insurance in such amounts and against such risks and losses as are consistent with the insurance maintained by it and its Subsidiaries in the ordinary course of business consistent with past practice; (o) except in the ordinary and usual course of business consistent with past practice or as may be required by applicable Law and except to the extent required by U.S. GAAP or International GAAP as advised by its regular independent accountants, neither Company nor any of its Subsidiaries shall change any accounting principle, practice or method in a manner that is inconsistent with past practice; (p) each of Company and its Subsidiaries shall (i) file all material Tax Returns required to be filed with any taxing authority in accordance with all applicable laws, (ii) timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed, (iii) promptly notify Purchaser of any action, suit, proceeding, investigation, audit or claim pending against or with respect to Company or any Subsidiary of Company in respect of any material Tax, and (iv) provide such assistance and cooperation as Purchaser and its Affiliates may reasonably request with respect to correspondence with, responding to requests from, or obtaining rulings from (a) the Philippine Bureau of Internal Revenue on any matter relating to Taxes, and (b) PEZA with respect to any agreements by and between Company and PEZA. Neither Company nor any of its Subsidiaries shall settle or compromise any material Tax liability, make or change any material election concerning Taxes or Tax Returns, file any material amended Tax Return, enter into any closing agreement with respect to Taxes, surrender any right to claim a material refund of Taxes, or obtain any Tax ruling. None of Company or any of its Subsidiaries shall relinquish or surrender any Tax holiday or exemption or shall take or case to be taken, or fail to take or cause to be taken, any action, which action or failure to act could reasonably be expected to result in relinquishing, surrendering or otherwise losing a Tax holiday or exemption; (q) neither Company nor any of its Subsidiaries will authorize or enter into an agreement to do anything prohibited by the foregoing; and (r) Company shall consult with Purchaser reasonably in advance of any decision to hire any “Executive Officer” (as such term is defined in Rule 3b-7 promulgated under the Exchange Act), promote any existing Executive Officer to a more senior position or otherwise appoint or promote any current director, employee, independent contractor or consultant to an Executive Officer position and shall consider in good faith the reasonable comments of Purchaser in connection therewith.

Covenants of Company. The During the period from the date of this Agreement and continuing until the Effective Time (except as expressly contemplated or permitted by this Agreement or to the extent that Commerce or Sub shall otherwise consent in writing, which consent shall not be unreasonably withheld) Company covenants agrees that it will and agrees thatwill cause each of its Subsidiaries to carry on the business of Company and each of its Subsidiaries in the usual, so long regular and ordinary course in substantially the same manner as heretofore conducted and use all reasonable efforts to preserve intact the present business organizations of Company and each of its Subsidiaries, maintain the rights and franchises of, and preserve the relationships with customers, suppliers and others having business dealings with, Company and each of its Subsidiaries. Without limiting the generality of the foregoing, except as set forth in Section 4.1 of the Company Disclosure Schedule, during the period from the date of this Debenture Agreement to the Effective Time, Company shall be outstandingnot, it willand shall not permit any of its Subsidiaries to, without the prior consent of Commerce and Sub in writing: (a) (i) Promptly declare or pay and discharge all lawful taxes, assessments, and governmental charges any dividends on or levies imposed upon the Company or upon its income and profits, or upon make other distributions in respect of any of its propertycapital stock, before except for cash dividends in an amount per share not greater than, and consistent with the same shall become manner and frequency of, dividends paid by Company in defaultthe past 12 months and dividends by a wholly owned Subsidiary of Company to Company, as well as all lawful claims (ii) set any record or payment dates for laborthe payment of any dividends or distribution on its capital stock except in the ordinary course of business consistent with past practice, materials and supplies which(iii) split, if unpaidcombine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, might become a lien in lieu of or charge upon such properties in substitution for, shares of its capital stock or (iv) repurchase, redeem or otherwise acquire, or permit any Subsidiary to purchase or otherwise acquire, any shares of its capital stock or the capital stock of any other Subsidiary of Company or any part securities convertible into or exercisable for any shares of such capital stock; (b) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock of any class, any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such shares, or enter into any agreement with respect to any of the foregoing, other than issuances of Company Common Stock, including a cashless exercise, pursuant to the exercise of stock options pursuant to the Company's stock option plan; (c) except as required to perform its obligations under this Agreement, amend or propose to amend its Articles of Incorporation or its By-laws or other organizational documents or that of any Subsidiary; (d) (i) enter into any new material line of business, (ii) change its lending, investment, liability management and other material banking policies in any respect which is material to Company, except as required by law or by policies imposed by a Bank Regulator, or (iii) except as set forth in Section 4.1(d) of the Company Disclosure Schedule, incur or commit to any capital expenditures or any obligations or liabilities in connection therewith other than capital expenditures and obligations or liabilities incurred or committed to in the ordinary course of business consistent with past practice but in no event for more than $25,000 as to any one such item or $50,000 as to all such items in the aggregate; (e) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other means, any business or any corporation, partnership, association or other business organization or division thereof, ; provided, however, that the foregoing shall not prohibit foreclosures and other debt- previously-contracted acquisitions in the ordinary course of business consistent with past practice; (f) sell, lease, encumber or otherwise dispose of, or agree to sell, lease, encumber or otherwise dispose of, any of its assets (including capital stock of Subsidiaries of Company), which are material, individually or in the aggregate, to Company, other than in the ordinary course of business consistent with past practice; (g) incur any long-term indebtedness for borrowed money or guarantee any such long-term indebtedness or issue or sell any long-term debt securities or warrants or rights to acquire any long-term debt securities of Company or any of its Subsidiaries or guarantee any long-term debt securities of others other than (i) indebtedness of any Subsidiary of Company to Company or to another Subsidiary of Company, (ii) deposits taken in the ordinary course of business consistent with past practice, or (iii) renewals or extensions of existing long-term indebtedness without any change in the material terms thereof; (h) intentionally take or fail to take any action with the intent to cause or create any of the representations and warranties set forth in this Agreement from being or becoming untrue in any material respect, or any of the conditions to the Closing set forth in ARTICLE VI (including without limitation the conditions set forth in Section 6.3(d)) not being satisfied, or (unless such action is required by applicable law or sound banking practice) which would adversely affect the ability of Commerce, Sub or Company to obtain any of the Requisite Regulatory Approvals; (i) change the methods of accounting of Company or any of its Subsidiaries, except as required by changes in GAAP as concurred in by such party's independent auditors; (i) enter into, adopt, amend (except for technical amendments and such amendments as may be required by law) or terminate any Company Benefit Plan or any other Benefit Plan or any agreement, arrangement, plan or policy between Company or any of its Subsidiaries and one or more of its directors or officers, increase in any manner the compensation or fringe benefits of any director, officer or employee of Company or any of its Subsidiaries without obtaining the prior written consent of Commerce and Sub (which consent shall not be unreasonably withheld)) or pay or grant any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock options, stock appreciation rights, restricted stock, restricted stock units or performance units or shares or any similar awards) or enter into any contract, agreement, commitment or arrangement to pay and discharge do any such taxof the foregoing, assessment(ii) enter into or renew any contract, chargeagreement, levy commitment or claim so long as arrangement providing for the validity thereof shall be contested in good faith payment to any director, officer or employee of Company or any of its Subsidiaries of compensation or benefits contingent, or the terms of which are materially altered, upon the occurrence of any of the transactions contemplated by appropriate proceedings and the Company shall set aside on its books adequate reserves this Agreement, or (iii) with respect to any Company Benefit Plan which is a defined benefit or defined contribution pension plan, permit or cause (A) a consolidation or merger of any such taxCompany Benefit Plan, assessment(B) a spin-off involving any such Company Benefit Plan, charge(C) a transfer of assets and/or liabilities from or to any such Company Benefit Plan, levy or claim so contested(D) any similar transaction involving any such Company Benefit Plan; (iik) Do or cause enter into any contract that would be required to be done all things reasonably necessary to preserve and keep disclosed on Section 3.1(i) of the Company Disclosure Schedule or renew or terminate any contract listed in full force and effect its corporate existenceSection 3.1(i) of the Company Disclosure Schedule through any volitional conduct, rights and franchises and comply with all laws applicable other than renewals of contracts or leases for a term of one year or less without material adverse changes to the Companyterms thereof; (iiil) At all times reasonably maintain, preserve, protect and keep its property used issue or useful agree to issue any letters of credit or otherwise guarantee the obligations of any other persons except in the conduct ordinary course of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its businessconsistent with past practice; (ivm) To the extent necessary for the operation engage or participate in any material transaction or incur or sustain any material obligation in excess of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations $50,000 individually or $100,000 in the Company's industry and carry such other insurance as is usually carried by similar corporations aggregate, not in the Company's industryordinary course of business consistent with past practice; (vn) At settle any claim, action or proceeding involving money damages involving a payment by Company or Bank (other than claims paid by an insurance company) in excess of $150,000 in the aggregate for all times keep true and correct bookssuch matters, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice or settle any other matter not involving money damages which is material to Company, or settle or waive any individual litigation claim of Company or Bank against a third party in excess of $500,000; (o) except as required by GAAP or applicable law or regulation, change or make any tax elections, change any method of accounting with respect to taxes, file any amended tax return, or settle or compromise any federal, state, local or foreign material tax liability; (p) relocate or close any branch or loan production office; (q) enter into any securitization or similar transactions with respect to any loans, leases or other assets of Company or any of its Subsidiaries; (r) take any action which would materially adversely affect the ability of any party to obtain any consents required for the inspection of Payee transactions contemplated hereby or to perform its agents; andcovenants and agreements under this Agreement; (vis) Except for make any single loan (or series of loans to the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee same or contingent payment obligation with respect thereto) secured by a lien, mortgage related entities or guarantee on the property (whether real or personalpersons) or equipment any commitment to loan (or series of commitments to the same or related entities or persons) which would be graded "OAEM" under Bank's rating system or in an amount greater than $250,000 other than renewals of existing loans or commitments to loan; (t) purchase or invest in any securities other than U.S. government obligations or other securities backed by the full faith and credit of the Company and United States having a maturity of not more than three (3) years from the date of purchase; (u) acquire or purchase any refinancings assets of or replacements thereto make any investment in any financial institution other than the purchase of loans, assets or trade debt or other current liabilities incurred participations therein in the ordinary course of business, (v) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, nor incur other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices; (w) make any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated loan or other extension of credit, or commit to make any such loan or extension of credit, to any director or officer of Company or its Subsidiaries, other than renewals of existing loans or commitments to loan, without giving Commerce five days' notice in right advance of payment Company's or its Subsidiary's approval of such loan or extension of credit or commitment relating thereto; (x) make any adjustments to Bank's loan loss reserve account except for increases to such account and appropriate charge-offs and recoveries following its normal historical practices; or (y) agree to, or make any commitment to, take any of the indebtedness evidenced actions prohibited by this DebentureSection 4.1. (z) take or cause to be taken any action which would disqualify the Merger as a tax-free "reorganization" within the meaning of Section 368(a) of the Code.

Covenants of Company. The Company covenants and agrees that, so long with Xxxxx Fargo as this Debenture shall be outstanding, it willfollows: (ia) Promptly pay and discharge all lawful taxesExcept as otherwise permitted or required by this Agreement, assessmentsfrom the date hereof until the Effective Time of the Merger, Company, and governmental charges each Company Subsidiary will: maintain its corporate existence in good standing; maintain the general character of its business and conduct its business in its ordinary and usual manner; extend credit in accordance with existing lending policies and provide Xxxxx Fargo access to its loan files (including credits extended after the date hereof), except that it shall not, without the prior written consent of Xxxxx Fargo (which shall be deemed to be waived if Xxxxx Fargo has made no response by the end of the second complete business day following the receipt (by confirmed facsimile) of the request by a Xxxxx Fargo representative designated in writing) (and except for commitments made prior to the date of this Agreement), make any new loan ("New Loan") or levies imposed modify, restructure or renew any existing loan ("Renewals") to any borrower if the amount of the resulting loan, when aggregated with all other loans or extensions of credit to such person, would be in excess of $250,000, in the case of a New Loan, or $350,000, in the case of Renewals; maintain proper business and accounting records in accordance with generally accepted principles; maintain its properties in good repair and condition, ordinary wear and tear excepted; maintain in all material respects presently existing insurance coverage; use its best efforts to preserve its business organization intact, to keep the services of its present principal employees and to preserve its good will and the good will of its suppliers, customers and others having business relationships with it; use its best efforts to obtain any approvals or consents required to maintain existing leases and other contracts in effect following the Merger; comply in all material respects with all laws, regulations, ordinances, codes, orders, licenses and permits applicable to the properties and operations of Company and each Company Subsidiary the non-compliance with which reasonably could be expected to have a material adverse effect on Company and the Company Subsidiaries taken as a whole; and permit Xxxxx Fargo and its representatives (including KPMG) to examine its and its subsidiaries books, records and properties and to interview officers, employees and agents at all reasonable times when it is open for business. No such examination by Xxxxx Fargo or its representatives either before or after the date of this Agreement shall in any way affect, diminish or terminate any of the representations, warranties or covenants of Company herein expressed. (b) Except as otherwise contemplated or required by this Agreement, from the date hereof until the Effective Time of the Merger, Company and each Company Subsidiary will not (without the prior written consent of Xxxxx Fargo): amend or otherwise change its articles of incorporation or association or by-laws; issue or sell or authorize for issuance or sale, or grant any options or make other agreements with respect to the issuance or sale or conversion of, any shares of its capital stock, phantom shares or other share-equivalents, or any other of its securities or amend or modify the terms of the Michigan Financial Corporation Stock Option Plan, except as contemplated by paragraph 4(q) hereof, except that Company may issue shares of Company Common Stock upon the Company exercise of outstanding stock options described in Schedule 4(b); authorize or upon its income and profitsincur any long-term debt (other than deposit liabilities); mortgage, pledge or upon subject to lien or other encumbrance any of its propertyproperties, before except in the same ordinary course of business; enter into any material agreement, contract or commitment in excess of $10,000 except banking transactions in the ordinary course of business and in accordance with policies and procedures in effect on the date hereof; make any investments except investments made by bank subsidiaries in the ordinary course of business for terms of up to one year and in amounts of $100,000 or less (which consent requirement shall become be deemed to be waived as to any investment to which Xxxxx Fargo has made no response by the end of the second complete business day following the receipt of the request by a Xxxxx Fargo representative designated in defaultwriting); amend or terminate any Plan except as required by law or the terms of this Agreement; make any contributions to any Plan except as required by the terms of such Plan in effect as of the date hereof; declare, as well as all lawful claims for laborset aside, materials make or pay any dividend or other distribution with respect to its capital stock except any dividend declared by the Board of Directors of a Company Subsidiary in accordance with applicable law and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereofregulation, provided, however, that the Board of Directors of Company shall may declare and pay cash dividends to the Company shareholders out of the net earnings of Company between October 18, 1999 and the Effective Time of the Merger in accordance with applicable law and regulation and in accordance with past practice in an amount not be required to pay exceed a quarterly rate of $.30 per share and discharge any such taxPROVIDED FURTHER, assessmentHOWEVER, charge, levy or claim so long as the validity thereof that Company shareholders shall be contested entitled to a dividend on Company Common Stock or Xxxxx Fargo Common Stock, but not both, in good faith by appropriate proceedings the calendar quarter in which the Closing shall occur; redeem, purchase or otherwise acquire, directly or indirectly, any of the capital stock of Company (except shares of Company Common Stock acquired from holders of options granted under the Michigan Financial Corporation Stock Option Plan in connection with the exercise of options thereunder); increase the compensation of any officers, directors or executive employees, except pursuant to existing compensation plans and practices; sell or otherwise dispose of any shares of the capital stock of any Company Subsidiary; or sell or otherwise dispose of any of its assets or properties other than in the ordinary course of business. (c) The Board of Directors of Company will duly call, and will cause to be held on a date agreeable to Xxxxx Fargo, but not later than twenty-five (25) business days following the effective date of the Registration Statement referred to in paragraph 5(c) hereof, a meeting of its shareholders and will direct that this Agreement and the Merger Agreement be submitted to a vote at such meeting. The Board of Directors of Company shall set aside on will (i) cause proper notice of such meeting to be given to its books adequate reserves shareholders in compliance with respect to any such taxthe Michigan Business Corporation Act and other applicable law and regulation, assessment, charge, levy or claim so contested; (ii) Do recommend by the affirmative vote of the Board of Directors a vote in favor of approval of this Agreement and the Merger Agreement, and (iii) use its best efforts to solicit from its shareholders proxies in favor thereof. (d) Company will furnish or cause to be done furnished to Xxxxx Fargo all things reasonably the information concerning Company and its subsidiaries required for inclusion in the Registration Statement referred to in paragraph 5(c) hereof, or any statement or application made by Xxxxx Fargo to any governmental body in connection with the transactions contemplated by this Agreement. Any financial statement for any fiscal year provided under this paragraph must include the audit opinion and the consent of Xxxxx, Xxxxxx and Company, LLP to use such opinion in such Registration Statement. (e) Company will take all necessary corporate and other action and use its best efforts to preserve obtain all approvals of regulatory authorities, consents and keep in full force other approvals required of Company to carry out the transactions contemplated by this Agreement and effect will cooperate with Xxxxx Fargo to obtain all such approvals and consents required of Xxxxx Fargo. (f) Company will use its corporate existence, rights and franchises and comply with all laws applicable best efforts to deliver to the Closing all opinions, certificates and other documents required to be delivered by it at the Closing. (g) Company will hold in confidence all documents and information concerning Xxxxx Fargo and its subsidiaries furnished to Company and its representatives in connection with the transactions contemplated by this Agreement and will not release or disclose such information to any other person, except as required by law and except to Company;'s outside professional advisers in connection with this Agreement, with the same undertaking from such professional advisers. If the transactions contemplated by this Agreement shall not be consummated, such confidence shall be maintained and such information shall not be used in competition with Xxxxx Fargo (except to the extent that such information can be shown to be previously known to Company, in the public domain, or later acquired by Company from other legitimate sources) and, upon request, all such documents, any copies thereof and extracts therefrom shall immediately thereafter be returned to Xxxxx Fargo. (h) Neither Company, nor any Company Subsidiary, nor any director, officer, representative or agent thereof, will, directly or indirectly, solicit, authorize the solicitation of or enter into any discussions with any corporation, partnership, person or other entity or group (other than Xxxxx Fargo) concerning any offer or possible offer (i) to purchase any shares of common stock, any option or warrant to purchase any shares of common stock, any securities convertible into any shares of such common stock, or any other equity security of Company or any Company Subsidiary, (ii) to make a tender or exchange offer for any shares of such common stock or other equity security, (iii) At all times reasonably maintainto purchase, preserve, protect and keep its property used lease or useful in otherwise acquire the conduct assets of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee Company or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred Subsidiary except in the ordinary course of business, nor incur or (iv) to merge, consolidate or otherwise combine with Company or any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right Company Subsidiary. If any corporation, partnership, person or other entity or group makes an offer or inquiry to Company or any Company Subsidiary concerning any of payment the foregoing, Company or such Company Subsidiary will promptly disclose such offer or inquiry, including the terms thereof, to Xxxxx Fargo. (i) Company shall consult with Xxxxx Fargo as to the indebtedness evidenced form and substance of any proposed press release or other proposed public disclosure of matters related to this Agreement or any of the transactions contemplated hereby. (j) Company and each Company Subsidiary will take all action necessary or required (i) to terminate or amend, if requested by Xxxxx Fargo, all qualified pension and welfare benefit plans and all non-qualified benefit plans and compensation arrangements as of the Effective Date of the Merger, and (ii) to submit application to the Internal Revenue Service for a favorable determination letter for each of the Plans which is subject to the qualification requirements of Section 401(a) of the Code prior to the Effective Date of the Merger. (k) [Intentionally omitted.] (l) Company shall use its best efforts to obtain and deliver prior to the Effective Date of the Merger signed representations substantially in the form attached hereto as Exhibit B to Xxxxx Fargo by each executive officer, director or shareholder of Company who may reasonably be deemed an "affiliate" of Company within the meaning of such term as used in Rule 145 under the Securities Act. (m) Company shall establish such additional accruals and reserves as may be necessary to conform Company's accounting and credit loss reserve practices and methods to those of Xxxxx Fargo and Xxxxx Fargo's plans with respect to the conduct of Company's business following the Merger and to provide for the costs and expenses relating to the consummation by Company of the Merger and the other transactions contemplated by this DebentureAgreement; provided, however, that (a) Company shall not be required to take such actions more than three (3) business days prior to the Closing Date or prior to the time Xxxxx Fargo agrees that all of the conditions to their obligation to close as set forth in paragraph 7 have been satisfied or waived (other than the deliveries to be made on the Closing Date) and no such adjustment shall (i) require any prior filing with any governmental agency or regulatory authority, or (ii) violate any law, rule or regulation applicable to Company; provided that in any event no accrual or reserve made by Company pursuant to this paragraph 4(m), shall constitute or be deemed to be a breach, violation of or failure to satisfy any representation, warranty, covenant, condition or other provision of this Agreement or otherwise be considered in determining whether any such breach, violation or failure to satisfy shall have occurred. (n) Company shall obtain, at its sole expense, Phase I environmental assessments for each bank facility and each non-residential OREO property. Oral reports of such environmental assessments shall be delivered to Xxxxx Fargo no later than four (4) weeks and written reports shall be delivered to Xxxxx Fargo no later than eight (8) weeks from the date of this Agreement. Company shall obtain, at its sole expense, Phase II environmental assessments for properties identified by Xxxxx Fargo on the basis of the results of such Phase I environmental assessments. Company shall obtain a survey and assessment of all potential asbestos containing material in owned or leased properties (other than OREO property) and a written report of the results shall be delivered to Xxxxx Fargo within four (4) weeks of the date of this Agreement. (o) Company shall obtain, at its sole expense, commitments for title insurance and boundary surveys for each bank facility which shall be delivered to Xxxxx Fargo no later than four (4) weeks from the date of this Agreement. (p) Company will assess the impact of the transactions contemplated by this Agreement on Company's continued compliance with the FFIEC Requirements and Company will take such action as may be necessary to amend Company's Year 2000 project assessment and remediation plan. Company will continue its current preparations for compliance with the FFIEC Requirements and will not rely on the consummation of the transactions contemplated by this Agreement to satisfy its FFIEC requirements. Company will provide Xxxxx Fargo with complete access to its Year 2000 project and remediation plan documentation and permit Xxxxx Fargo to review and investigate Company's continuing Year 2000 compliance efforts and the results thereof. (q) Company shall take such action as is necessary to terminate the Michigan Financial Corporation Stock Option Plan effective as of the Effective Time. (r) Company shall collect in cash (and timely pay) all applicable withholding and payroll taxes from each holder of an option that is exercised for shares of Company Common Stock and shall comply with all payroll reporting requirements with respect thereto.

Covenants of Company. The During the period from the date of this Agreement and continuing until the Effective Time (except as expressly contemplated or permitted by this Agreement or to the extent that Commerce or Sub shall otherwise consent in writing, which consent shall not be unreasonably withheld) Company covenants agrees that it will and agrees thatwill cause each of its Subsidiaries to carry on the business of Company and each of its Subsidiaries in the usual, so long regular and ordinary course in substantially the same manner as heretofore conducted and use all reasonable efforts to preserve intact the present business organizations of Company and each of its Subsidiaries, maintain the rights and franchises of, and preserve the relationships with customers, suppliers and others having business dealings with, Company and each of its Subsidiaries to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, except as set forth in Schedule 4.1, during the period from the date of this Debenture Agreement to the Effective Time, Company shall be outstandingnot, it willand shall not permit any of its Subsidiaries to, without the prior consent of Commerce and Sub in writing: (a) (i) Promptly declare or pay and discharge all lawful taxes, assessments, and governmental charges any dividends on or levies imposed upon the Company or upon its income and profits, or upon make other distributions in respect of any of its propertycapital stock, before except for any dividends by a wholly-owned Subsidiary of Company to Company, (ii) set any record or payment dates for the same shall become payment of any dividends or distribution on its capital stock, (iii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in defaultrespect of, as well as all lawful claims for laborin lieu of or in substitution for, materials and supplies whichshares of its capital stock or (iv) repurchase, if unpaidredeem or otherwise acquire, might become a lien or charge upon such properties permit any Subsidiary to purchase or otherwise acquire, any shares of its capital stock or the capital stock of any other Subsidiary of Company or any part thereof, securities convertible into or exercisable for any shares of such capital stock; provided, however, that the Company foregoing shall not prohibit Company's payment of one or more cash dividends to the shareholders of Company in an amount that, in the aggregate, does not cause the conditions to Closing set forth in Section 6.2(f) to fail to be required satisfied; (b) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock of any class, any securities convertible into or exercisable for, or any rights, warrants or options to pay and discharge acquire, any such taxshares, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves enter into any agreement with respect to any of the foregoing, other than issuances of Company Common Stock, including a cashless exercise, pursuant to the exercise of Company Options; (c) except as required to perform its obligations under this Agreement, amend or propose to amend its Certificate of Incorporation or its By-laws or other organizational documents or that of any Subsidiary; (d) (i) enter into any new material line of business, (ii) change its lending, investment, liability management and other material banking policies in any respect which is material to Company, except as required by law or by policies imposed by a Bank Regulator, or (iii) except as set forth in Schedule 4.1(d), incur or commit to any capital expenditures or any obligations or liabilities in connection therewith other than capital expenditures and obligations or liabilities incurred or committed to in the ordinary course of business consistent with past practice but in no event for more than $25,000 as to any one such taxitem or $50,000 as to all such items in the aggregate; (e) acquire or agree to acquire by merging or consolidating with, assessmentor by purchasing a substantial equity interest in or a substantial portion of the assets of, chargeor by any other means, levy any business or claim so contestedany corporation, partnership, association or other business organization or division thereof; provided, however, that the foregoing shall not prohibit foreclosures and other debt- previously-contracted acquisitions in the ordinary course of business consistent with past practice; (f) sell, lease, encumber or otherwise dispose of, or agree to sell, lease, encumber or otherwise dispose of, any of its assets (including capital stock of Subsidiaries of Company), which are material, individually or in the aggregate, to Company, other than in the ordinary course of business consistent with past practice; (g) incur any long‑term indebtedness for borrowed money or guarantee any such long‑term indebtedness or issue or sell any long-term debt securities or warrants or rights to acquire any long-term debt securities of Company or any of its Subsidiaries or guarantee any long‑term debt securities of others other than (i) indebtedness of any Subsidiary of Company to Company or to another Subsidiary of Company, (ii) deposits taken in the ordinary course of business consistent with past practice, or (iii) renewals or extensions of existing long-term indebtedness without any change in the material terms thereof; (h) take or fail to take any action that would, or reasonably might be expected to, result in any of the representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Closing set forth in ARTICLE VI (including without limitation the conditions set forth in Section 6.3(d)) not being satisfied, or (unless such action is required by applicable law or sound banking practice) which would adversely affect the ability of Commerce, Sub or Company to obtain any of the Requisite Regulatory Approvals; (i) change the methods of accounting of Company or any of its Subsidiaries, except as required by changes in GAAP as concurred in by such party's independent auditors; (j) except as contemplated by Sections 5.13 and 5.15 hereof and except for the granting of a cash bonus to employees of the Bank immediately prior to the Closing Date, which bonus shall have been fully accrued by the Company and be in accordance with past practice (provided that, in the aggregate such bonuses do not cause the conditions to Closing set forth in Section 6.2(f) to fail to be satisfied; and provided, further, that Company shall provide Commerce with a list of the recipients and amounts of such bonuses no later than five (5) Business Days prior to the Closing), (i) enter into, adopt, amend (except for technical amendments and such amendments as may be required by law) or terminate any Employee Plan or any agreement, arrangement, plan or policy between Company or any of its Subsidiaries and one or more of its directors or officers, increase in any manner the compensation or fringe benefits of any director, officer or employee of Company or any of its Subsidiaries without obtaining the prior written consent of Commerce and Sub (which consent shall not be unreasonably withheld) or pay or grant any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock options, stock appreciation rights, restricted stock, restricted stock units or performance units or shares or any similar awards) or enter into any contract, agreement, commitment or arrangement to do any of the foregoing, (ii) enter into or renew any contract, agreement, commitment or arrangement providing for the payment to any director, officer or employee of Company or any of its Subsidiaries of compensation or benefits contingent, or the terms of which are materially altered, upon the occurrence of any of the transactions contemplated by this Agreement, or (iii) with respect to any Employee Plan which is a defined benefit or defined contribution pension plan, permit or cause (A) a consolidation or merger of any such Employee Plan, (B) a spin‑off involving any such Employee Plan, (C) a transfer of assets and/or liabilities from or to any such Employee Plan, or (D) any similar transaction involving any such Employee Plan; (k) enter into any contract that would be required to be disclosed on Schedule 3.1(i) or renew or terminate any contract listed in Schedule 3.1(i) through any volitional conduct, other than renewals of contracts or leases for a term of one year or less without material adverse changes to the terms thereof; provided, that Company shall not enter into any lease for Real Property or any renewal, extension or amendment thereof; (l) issue or agree to issue any letters of credit or otherwise guarantee the obligations of any other persons except in the ordinary course of business consistent with past practice; (m) engage or participate in any material transaction or incur or sustain any material obligation in excess of $10,000 individually or $50,000 in the aggregate, not in the ordinary course of business consistent with past practice; (n) settle any claim, action or proceeding involving money damages involving a payment by Company or Bank in excess of $50,000 as to any such matter, or settle any other matter not involving money damages which is material to Company; (o) except as required by GAAP or applicable law or regulation, change or make any tax elections, change any method of accounting with respect to taxes, file any amended tax return, or settle or compromise any federal, state, local or foreign material tax liability; (p) relocate or close any branch or loan production office; (q) enter into any securitization or similar transactions with respect to any loans, leases or other assets of Company or any of its Subsidiaries; (r) take any action which would materially adversely affect the ability of any party to obtain any consents required for the transactions contemplated hereby or to perform its covenants and agreements under this Agreement; (s) make any single loan (or series of loans to the same or related entities or persons) or any commitment to loan (or series of commitments to the same or related entities or persons): (i) outside the ordinary course of business or inconsistent with Bank's loan committee procedures existing on the date hereof; or (ii) Do in the ordinary course of business and consistent with Bank's loan committee procedures existing on the date hereof which (A) would be graded “OAEM” under Bank's rating system, or cause (B) is in an amount greater than $500,000 for an unsecured loan or $1,000,000 for a secured loan other than renewals of existing loans or commitments to be done all things reasonably necessary to preserve loan made in the ordinary course of business and keep consistent with Bank's loan committee procedures existing on the date hereof. (t) purchase or invest in any securities other than U.S. government obligations or other securities backed by the full force faith and effect its corporate existence, rights and franchises and comply with all laws applicable to credit of the CompanyUnited States having a maturity of not more than three (3) years from the date of purchase; (iiiu) At all times reasonably maintain, preserve, protect and keep its property used acquire or useful purchase any assets of or make any investment in any financial institution other than the conduct purchase of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee loans or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred participations therein in the ordinary course of business, (v) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, nor incur other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices; (w) make any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated loan or other extension of credit, or commit to make any such loan or extension of credit, to any director or officer of Company or its Subsidiaries, other than renewals of existing loans or commitments to loan, without giving Commerce five days' notice in right advance of payment Company's or its Subsidiary's approval of such loan or extension of credit or commitment relating thereto; (x) make any adjustments to Bank's loan loss reserve account except for (A) increases to such account and appropriate charge-offs and recoveries following its normal historical practices and (B) reductions to such account so long as such reductions occur within five (5) Business Days prior to the indebtedness evidenced Closing Date, are in accordance with GAAP, and do not cause the amount of the loan loss reserve account to be less than the amount specified in Section 6.2(f) hereof; (y) agree to, or make any commitment to, take any of the actions prohibited by this DebentureSection 4.1; or (z) take or cause to be taken any action which would disqualify the Merger as a tax-free “reorganization” within the meaning of Section 368(a) of the Code.

Covenants of Company. The (a) Company's Negative Covenants. From the date hereof through the Closing, without the prior written consent of Parent (which will not be unreasonably withheld or delayed), except for such rate increases as the Company covenants Entities may implement under applicable Legal Requirements and agrees thatexcept as set forth on Schedule 5.2 or unless otherwise required or permitted by any other provision of this Agreement or any Related Agreement, so long as this Debenture the Company shall be outstandingnot, it willand shall cause the other Company Entities not to: (i) Promptly pay take any action which would cause the representations and discharge all lawful taxes, assessments, and governmental charges or levies imposed upon warranties made by the Company in this Agreement not to be true, correct and accurate, in all material respects (determined as provided in Section 6.4) as of the Closing; (ii) modify in any material respect, terminate, renew for a period extending past the Termination Date, suspend or upon its income and profits, or upon abrogate any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, material Contract; provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof Entities shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such taxentitled, assessment, charge, levy or claim so contested; (ii) Do or cause to be done all things reasonably necessary to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful in the conduct of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred in the ordinary course of business, nor incur to enter into new contracts, agreements, commitments, arrangements or understandings which would involve payments by any of the Surviving Corporation or any Company Entity not in excess of $500,000 individually or $10,000,000 in the aggregate; (iii) (A) terminate any Franchise or material System Right or (B) modify in any material respect, renew for a period extending past the Termination Date, suspend or abrogate any Franchise or material System Right; (iv) except as required by applicable Legal Requirements, change any policy regarding any marketing, subscriber installation or collection practices that are inconsistent in any material respect with such practices of the Company Entities for the periods covered by the Company SEC Reports; (v) dispose of any Assets, except for sales of non-material assets in the ordinary course of business and consistent with past practices (including practices during the periods covered by the Company SEC Reports); (vi) grant or agree to grant any increase in the rates of salaries or compensation payable to employees of the Company Entities (other than as required by law and regularly scheduled bonuses and increases in the ordinary course of business); (vii) amend its articles of incorporation or bylaws or other applicable governing instrument; (viii) split, combine, subdivide or reclassify any shares of its capital stock or other equity interests or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof), other than regular quarterly cash dividends not in excess of $0.08 per share per quarter, in respect of its capital stock, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any of its securities or any securities of the Company or any other Company Entity, except for dividends paid by any Company Entity that is, directly or indirectly, wholly-owned by the Company; (ix) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization; (x) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock of any class or other equity interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock or other equity interests, other than the issuance of shares of Company Common Stock upon the exercise of stock options in accordance with their present terms; (xi) amend any existing Benefit Plan or establish or adopt any new Benefit Plan (other than as required by Legal Requirements or done in the ordinary course of business); (xii) enter into any new, or amend in any material respect any existing, employment, severance or consulting agreement, sales agency or other Contract with respect to the performance of personal services, except (A) any such new agreement providing for cash compensation of less than $100,000 per annum entered into in the ordinary course of business; and (B) any individuals hired on an at-will basis to replace current employees or to service customer contracts that commence after the date hereof; (xiii) except for capital expenditures, which shall be governed by Section 5.8, acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, other than (A) pursuant to agreements in effect as of the date hereof, or (B) assets having a fair market value not exceeding $5,000,000 in the aggregate (and not involving Basic Subscribers in the aggregate of 1,500 or more); (xiv) incur, assume or guarantee any indebtedness whatsoever for borrowed money other than in the ordinary course of business and in amounts and on terms consistent with past practices; or (xv) enter into or amend in any material respect (A) any joint venture, partnership or other similar arrangement (other than joint ventures, partnerships or similar arrangements involving, in the aggregate, no more than 1,500 Basic Subscribers), (B) any agreement for the provision by one or more third parties of telephony, data or other services through the facilities of one or more of the Cable Systems of any Company Entity, which indebtedness does is exclusive or which cannot expressly provide that it be terminated within six months of the Effective Time without any penalty, or (C) any agreement providing for the right to use the facilities of one or more of the Cable Systems of the Company Entities, which is wholly subordinated in right exclusive or which cannot be terminated within six months of payment to the indebtedness evidenced by this DebentureEffective Time without any penalty.

Covenants of Company. The During the period from the date of this Agreement and continuing until the Effective Time (except as expressly contemplated or permitted by this Agreement or to the extent that Commerce or Sub shall otherwise consent in writing, which consent shall not be unreasonably withheld) Company covenants agrees that it will and agrees thatwill cause each of its Subsidiaries to carry on the business of Company and each of its Subsidiaries in the usual, so long regular and ordinary course in substantially the same manner as heretofore conducted and use all reasonable efforts to preserve intact the present business organizations of Company and each of its Subsidiaries, maintain the rights and franchises of, and preserve the relationships with customers, suppliers and others having business dealings with, Company and each of its Subsidiaries to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, except as set forth in Section 4.1 of the Company Disclosure Schedule, during the period from the date of this Debenture Agreement to the Effective Time, Company shall be outstandingnot, it willand shall not permit any of its Subsidiaries to, without the prior consent of Commerce and Sub in writing: (a) (i) Promptly declare or pay and discharge all lawful taxes, assessments, and governmental charges any dividends on or levies imposed upon the Company or upon its income and profits, or upon make other distributions in respect of any of its propertycapital stock, before except for cash dividends in an amount per share not greater than, and consistent with the same shall become manner and frequency of, dividends paid by the Company consistent with any dividends paid in default2004 and 2005 and any dividends by a wholly-owned Subsidiary of the Company to Company, as well as all lawful claims (ii) set any record or payment dates for laborthe payment of any dividends or distribution on its capital stock except in the ordinary course of business consistent with past practice, materials and supplies which(iii) split, if unpaidcombine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, might become a lien in lieu of or charge upon such properties in substitution for, shares of its capital stock or (iv) repurchase, redeem or otherwise acquire, or permit any Subsidiary to purchase or otherwise acquire, any shares of its capital stock or the capital stock of any other Subsidiary of Company or any part securities convertible into or exercisable for any shares of such capital stock; (b) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock of any class, any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such shares, or enter into any agreement with respect to any of the foregoing, other than issuances of Company Common Stock, including a cashless exercise, pursuant to the exercise of Company Options. (c) except as required to perform its obligations under this Agreement, amend or propose to amend its Certificate of Incorporation or its By-laws or other organizational documents or that of any Subsidiary; (d) (i) enter into any new material line of business, (ii) change its lending, investment, liability management and other material banking policies in any respect which is material to Company, except as required by law or by policies imposed by a Bank Regulator, or (iii) except as set forth in Section 4.1(d) of the Company Disclosure Schedule, incur or commit to any capital expenditures or any obligations or liabilities in connection therewith other than capital expenditures and obligations or liabilities incurred or committed to in the ordinary course of business consistent with past practice but in no event for more than $25,000 as to any one such item or $50,000 as to all such items in the aggregate; (e) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other means, any business or any corporation, partnership, association or other business organization or division thereof, ; provided, however, that the foregoing shall not prohibit foreclosures and other debt- previously-contracted acquisitions in the ordinary course of business consistent with past practice; (f) sell, lease, encumber or otherwise dispose of, or agree to sell, lease, encumber or otherwise dispose of, any of its assets (including capital stock of Subsidiaries of Company), which are material, individually or in the aggregate, to Company, other than in the ordinary course of business consistent with past practice; (g) incur any long-term indebtedness for borrowed money or guarantee any such long-term indebtedness or issue or sell any long-term debt securities or warrants or rights to acquire any long-term debt securities of Company or any of its Subsidiaries or guarantee any long-term debt securities of others other than (i) indebtedness of any Subsidiary of Company to Company or to another Subsidiary of Company, (ii) deposits taken in the ordinary course of business consistent with past practice, or (iii) renewals or extensions of existing long-term indebtedness without any change in the material terms thereof; (h) intentionally take or fail to take any action that would, or reasonably might be expected to, result in any of the representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Closing set forth in ARTICLE VI (including without limitation the conditions set forth in Section 6.3(d)) not being satisfied, or (unless such action is required by applicable law or sound banking practice) which would adversely affect the ability of Commerce, Sub or Company to obtain any of the Requisite Regulatory Approvals; (i) change the methods of accounting of Company or any of its Subsidiaries, except as required by changes in GAAP as concurred in by such party’s independent auditors; (j) (i) enter into, adopt, amend (except for technical amendments and such amendments as may be required by law) or terminate any Employee Plan or any agreement, arrangement, plan or policy between Company or any of its Subsidiaries and one or more of its directors or officers, increase in any manner the compensation or fringe benefits of any director, officer or employee of Company or any of its Subsidiaries (other than customary annual merit raises for officers and employees consistent with past practice and amounts and annual bonuses consistent with past practice and amounts, which will be paid on or about December 31, 2006) without obtaining the prior written consent of Commerce and Sub (which consent shall not be unreasonably withheld) or pay or grant any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock options, stock appreciation rights, restricted stock, restricted stock units or performance units or shares or any similar awards) or enter into any contract, agreement, commitment or arrangement to pay and discharge do any such taxof the foregoing, assessment(ii) enter into or renew any contract, chargeagreement, levy commitment or claim so long as arrangement providing for the validity thereof shall be contested in good faith payment to any director, officer or employee of Company or any of its Subsidiaries of compensation or benefits contingent, or the terms of which are materially altered, upon the occurrence of any of the transactions contemplated by appropriate proceedings and the Company shall set aside on its books adequate reserves this Agreement, or (iii) with respect to any Employee Plan which is a defined benefit or defined contribution pension plan, permit or cause (A) a consolidation or merger of any such taxEmployee Plan, assessment(B) a spin-off involving any such Employee Plan, charge(C) a transfer of assets and/or liabilities from or to any such Employee Plan, levy or claim so contested(D) any similar transaction involving any such Employee Plan; (iik) Do or cause enter into any contract that would be required to be done all things reasonably necessary to preserve and keep disclosed on Section 3.1(i) of the Company Disclosure Schedule or renew or terminate any contract listed in full force and effect its corporate existenceSection 3.1(i) of the Company Disclosure Schedule through any volitional conduct, rights and franchises and comply with all laws applicable other than renewals of contracts or leases for a term of one year or less without material adverse changes to the terms thereof; (l) issue or agree to issue any letters of credit or otherwise guarantee the obligations of any other persons except in the ordinary course of business consistent with past practice; (m) engage or participate in any material transaction or incur or sustain any material obligation in excess of $10,000 individually or $50,000 in the aggregate, not in the ordinary course of business consistent with past practice; (n) settle any claim, action or proceeding involving money damages involving a payment by Company or Bank (other than claims paid by an insurance company) in excess of $100,000 as to any such matter, or settle any other matter not involving money damages which is material to Company; (iiio) At all times reasonably maintainexcept as required by GAAP or applicable law or regulation, preservechange or make any tax elections, protect and keep its property used change any method of accounting with respect to taxes, file any amended tax return, or useful in the conduct of its business in good repairsettle or compromise any federal, working order and conditionstate, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its businesslocal or foreign material tax liability; (ivp) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industryrelocate or close any branch or loan production office; (vq) At all times keep true enter into any securitization or similar transactions with respect to any loans, leases or other assets of Company or any of its Subsidiaries; (r) take any action which would materially adversely affect the ability of any party to obtain any consents required for the transactions contemplated hereby or to perform its covenants and correct books, records and accounts. Such books and records agreements under this Agreement; (s) make any single loan (or series of loans to the same or related entities or persons) or any commitment to loan (or series of commitments to the same or related entities or persons) which would be graded “OAEM” under Bank’s rating system or in an amount greater than $400,000 (“New Credit”) other than renewals of existing loans or commitments to loan provided that any New Credit shall be open at reasonable times made in the ordinary course of business and upon reasonable notice for consistent with Bank’s loan committee procedures existing on the inspection of Payee or its agents; anddate hereof and provided further that in addition any New Credit between $150,000 and $400,000 shall be approved by Bank’s chief executive officer. (vit) Except for purchase or invest in any securities other than U.S. government obligations or other securities backed by the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment full faith and credit of the Company and United States having a maturity of not more than three (3) years from the date of purchase; (u) acquire or purchase any refinancings assets of or replacements thereto make any investment in any financial institution other than the purchase of loans or trade debt or other current liabilities incurred participations therein in the ordinary course of business, (v) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, nor incur other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices; (w) make any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated loan or other extension of credit, or commit to make any such loan or extension of credit, to any director or officer of Company or its Subsidiaries, other than renewals of existing loans or commitments to loan, without giving Commerce five days’ notice in right advance of payment Company’s or its Subsidiary’s approval of such loan or extension of credit or commitment relating thereto; (x) make any adjustments to Bank’s loan loss reserve account except for increases to such account and appropriate charge-offs and recoveries following its normal historical practices; (y) agree to, or make any commitment to, take any of the indebtedness evidenced actions prohibited by this DebentureSection 4.1; or (z) take or cause to be taken any action which would disqualify the Merger as a tax-free “reorganization” within the meaning of Section 368(a) of the Code.

Covenants of Company. The From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, unless the prior written consent of Parent shall have been obtained, and except as otherwise expressly contemplated herein, including in connection with the Asset Dispositions in accordance with Section 8.10, Company shall, and shall cause each of its Subsidiaries to, (A) operate InterCall and the InterCall Operating Subsidiaries only in the usual, regular and ordinary course of business consistent with past practice, (B) preserve intact the business organization of InterCall and the InterCall Operating Subsidiaries, (C) take no action which would (1) adversely affect the ability of any Party to obtain any Consents required for the transactions contemplated hereby, or (2) adversely affect the ability of any Party to perform its covenants and agrees thatagreements under this Agreement, so long as this Debenture shall be outstandingand (D) not authorize, it willdo or agree or commit to do any of the following: (ia) Promptly pay and discharge all lawful taxesamend the Certificate of Incorporation, assessments, and governmental charges Bylaws or levies imposed upon the other governing instruments of any Company or upon its income and profits, or upon any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contested;Entity; or (iib) Do or cause to be done all things reasonably necessary to preserve and keep except as disclosed in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iiiSection 7.1(b) At all times reasonably maintain, preserve, protect and keep its property used or useful in the conduct of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and Disclosure Memorandum, incur any refinancings or replacements thereto or trade debt obligation or other current liabilities incurred obligation for borrowed money (other than indebtedness of a Company Entity to another Company Entity) in excess of an aggregate of $100,000 (for the Company Entities on a consolidated basis), except in the ordinary course of the business consistent with past practice, or impose, or suffer the imposition, on any material Asset of any Company Entity of any Lien or permit any such Lien to exist (other than in connection with Liens in effect as of the date hereof); or (c) except as disclosed in Section 7.1(c) of the Company Disclosure Memorandum or as contemplated in Section Error! Reference source not found., repurchase, redeem, or otherwise acquire or exchange (other than exchanges in the ordinary course under employee benefit plans), directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of any Company Entity, or declare or pay any dividend or make any other distribution in respect of Company Capital Stock; or (d) except for this Agreement, pursuant to the exercise of stock options outstanding as of the date hereof and pursuant to the terms thereof in existence on the date hereof, as contemplated in Section 8.10 or as disclosed in Section 7.1(d) of the Company Disclosure Memorandum, issue, sell, pledge, encumber, authorize the issuance of, enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of Company Capital Stock or any other capital stock of any Company Entity, or any stock appreciation rights, or any option, warrant, or other Equity Right; or (e) except as disclosed in Section 7.1(e) of the Company Disclosure Memorandum or as contemplated in Section Error! Reference source not found., adjust, split, combine or reclassify any capital stock of any Company Entity or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Company Capital Stock, or sell, lease, mortgage or otherwise dispose of or otherwise encumber (i) any shares of capital stock of any Company Subsidiary (unless any such shares of stock are sold or otherwise transferred to another Company Entity) or (ii) any Assets for reasonable and adequate consideration which exceeds $50,000 individually or $100,000 in the aggregate; or (f) except for purchases of U.S. Treasury securities or U.S. Government agency securities, which in either case have maturities of sixty (60) days or less, except as contemplated in Section 8.10 and except as disclosed in Section 7.1(f) of the Company Disclosure Memorandum, purchase any securities or make any investment, either by purchase of stock of securities, contributions to capital, Asset transfers, or purchase of any Assets, in any Person other than a wholly owned Company Subsidiary, or otherwise acquire direct or indirect control over any Person; or (g) except as disclosed in Section 7.1(g) of the Company Disclosure Memorandum, grant any increase in compensation or benefits to the employees or officers of any Company Entity, except with respect to any employee who earned less than $150,000 in the calendar year ended December 31 immediately preceding the date of this Agreement in accordance and consistent with past practice (but in any event not exceeding 5% of such person's compensation and benefits) or as required by Law; pay any severance or termination pay or any bonus other than pursuant to written policies or written Contracts in effect on the date of this Agreement and disclosed in Section 7.1(g) of the Company Disclosure Memorandum; and enter into or amend any severance agreements with officers of any Company Entity; grant any material increase in fees or other increases in compensation or other benefits to directors of any Company Entity except in accordance with past practice or waive any stock repurchase rights, accelerate, amend or change the period of exercisability of any Equity Rights or restricted stock, or reprice Equity Rights granted under the Company Stock Plan or authorize cash payments in exchange for any Equity Rights; or (h) enter into or amend any employment Contract between any Company Entity and any Person having a salary thereunder in excess of $75,000 per year (unless such amendment is required by Law) that the Company Entity does not have the unconditional right to terminate without Liability (other than Liability for services already rendered), at any time on or after the Effective Time; or (i) except as disclosed in Section 7.1(i) of the Company Disclosure Memorandum, adopt any new employee benefit plan of any Company Entity or terminate or withdraw from, or make any material change in or to, any existing employee benefit plans of any Company Entity other than any such change that is required by Law or that, in the opinion of counsel, is necessary or advisable to maintain the tax qualified status of any such plan, or make any distributions from such employee benefit plans, except as required by Law, the terms of such plans or consistent with past practice; or (j) except as disclosed in Section 7.1(j) of the Company Disclosure Memorandum, make any material change in any Tax or accounting methods or systems of internal accounting controls or make any Tax election, except as may be appropriate to conform to changes in Tax Laws or regulatory accounting requirements or GAAP; or (k) permit any tax sharing agreement or similar arrangement with respect to Taxes involving any Company Entity included within the affiliated group within the meaning of Section 1504(a) of the Code of which Company is the common parent to remain effective after the Closing Date, such that, after the Closing Date, no Company Entity shall have any obligation under any such agreement or arrangement for any past, present or future taxable period; or (l) sell, transfer, dispose, abandon or otherwise encumber any Company Intellectual Property unless such abandonment otherwise occurs in the usual, regular and ordinary course of business consistent with past practice; or (m) except as set forth in Section 7.1(m) of the Company Disclosure Memorandum, settle or compromise any claims or litigation involving payments by any Company Entity of $50,000 or more in any single instance or related instances, or that otherwise are material to the conduct of the business of any Company Entity (it being understood that any such settlement or compromise shall not provide for any equitable or injunctive relief) or, except in the ordinary and usual course of business, nor incur modify, amend or terminate any indebtedness whatsoever which indebtedness does not expressly provide that of its material Contracts or waive, release or assign any material rights or claims; or (n) permit any insurance policy naming it is wholly subordinated as a beneficiary or a loss payee to be cancelled or terminated without notice to Parent, except in right the ordinary and usual course of payment to business; or (o) enter into or amend any Company Indemnification Agreement; or (p) renew the indebtedness evidenced by this Debentureagreement set forth in Section 7.1(p) of the Company Disclosure Memorandum. Notwithstanding the foregoing, the Company Entities may terminate any of the employees of Company and ITC Service Company.

Covenants of Company. The During the period from the date of this Agreement and continuing until the Effective Time, Company covenants and agrees thatto act as follows, so long except as expressly contemplated by this Debenture Agreement or to the extent that Parent shall be outstanding, it willotherwise consent in writing: (a) Except in connection with the Assumed Company Options or subject to any express limitation contained herein, Company shall carry on its business in the usual, regular and ordinary course, including the payment when due of all Taxes, debts and obligations, in substantially the same manner as heretofore conducted and , without making any commitment on behalf of or which would be binding upon Parent, shall use its commercially reasonable efforts to preserve intact its present business organization and shall use its best efforts to keep available to Parent the services of its present officers and employees and preserve its relationships with present and potential customers, licensors, licensees, suppliers, service providers and others having business dealings with them, to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. (b) Company shall not and shall not propose to, directly or indirectly, (i) Promptly make, declare or pay and discharge all lawful taxes, assessments, and governmental charges any dividends or levies imposed upon the Company other distribution on or upon its income and profits, or upon in respect of any of its propertycapital stock, before (ii) split, combine or reclassify any of its capital stock or issue or authorize the same issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of Company, or (iii) except for repurchases under the terms of restricted stock awards, repurchase, redeem or otherwise acquire any shares of its capital stock, options, warrants or rights to acquire any shares of its capital stock. (c) Except for (i) the issuance of Company Common Stock upon exercise of presently outstanding Company Options disclosed on Schedule 3.2 in accordance with the terms thereof, (ii) the issuance of the Additional Company Options or Company Options in accordance with (d) Company shall become not cause or permit any amendment of its Certificate of Incorporation or Bylaws. (e) Until the earlier of the Effective Time and the termination of this Agreement pursuant to Section 11.1 hereof, Company will not take (and Company will not permit any of its directors, officers, agents, Affiliates or representatives, including investment bankers, financial advisors, attorneys and accountants (collectively, Company's "Representatives") to take), directly or indirectly, any of the following actions: (i) solicit, initiate, facilitate or encourage, or furnish information with respect to Company or its subsidiaries in defaultconnection with, as well as all lawful claims for laborany inquiry, materials and supplies whichproposal or offer with respect to any merger, if unpaid, might become a lien consolidation or charge upon such properties other business combination or acquisition involving Company or any part thereofof its subsidiaries or the acquisition of all or a substantial portion of the assets of, or any securities of, Company or any of its subsidiaries, other than the Merger (an "Acquisition Proposal"); (ii) negotiate, discuss, explore or otherwise communicate or cooperate in any way with any third party with respect to any Acquisition Proposal; (iii) enter into any agreement, arrangement or understanding with respect to an Acquisition Proposal or requiring Company to abandon, terminate or refrain from consummating the transactions contemplated hereby with Parent; or (iv) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent Company or its board of directors from (a) engaging in discussions or negotiations with, or providing information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by such Person and (b) recommending such unsolicited bona fide written Acquisition Proposal to the stockholders of Company, if and only to the extent that (i) the board of directors of Company concludes in good faith (after consultation with a nationally recognized financial advisory firm) that such Acquisition Proposal is reasonably capable of being completed taking into account the financial and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal and would, if consummated, result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"), (ii) the board of directors of Company determines in good faith after consultation with outside legal counsel that such action is required for such board to comply with its fiduciary duties under applicable law and (iii) prior to providing any information or data concerning Company or its Subsidiaries to any Person in connection with an Acquisition Proposal by such Person, Company receives from such Person an executed confidentiality agreement similar to the letter agreement between Parent and Company dated as of September 5, 2000 executed in connection with their consideration of the Merger (the "Confidentiality Letter"). Company shall, and shall cause each of Company's Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any person relating to an Acquisition Proposal. Company shall, and Company shall use its best (f) Company shall not be required (a) acquire or agree to pay and discharge acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any such taxother manner, assessmentany business or any corporation, chargepartnership, levy association or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect other business organization or division thereof, (b) otherwise acquire or agree to acquire any such taxassets which are material, assessment, charge, levy individually or claim so contested; (ii) Do or cause to be done all things reasonably necessary to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful in the conduct of its business in good repairaggregate, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred except in the ordinary course of businessbusiness consistent with past practice, nor or (c) enter into any strategic alliance, joint venture, or joint development, manufacturing or marketing agreement. (g) Company shall not sell, lease, encumber, pledge or otherwise dispose of any of its assets or properties, except (a) in the ordinary course of business consistent with prior practice and in any event not in excess of $10,000 in the aggregate, and (b) for sales of inventory and licenses in the ordinary course of business consistent with prior practice. (h) Company shall not shall assume, incur or guarantee any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right indebtedness, enter into, extend or renew any credit agreement, line of payment credit or similar arrangement, issue or sell any debt securities or warrants or rights to purchase debt securities, enter into, extend or renew any lease, or enter into, extend or renew any indemnity agreement or agreement to maintain the indebtedness evidenced by this Debenturefinancial condition of another person or entity.

Covenants of Company. The Company covenants During the period from the date of this Agreement and agrees thatcontinuing until the Effective Time, so long as this Debenture shall be outstanding, it will: except (i) Promptly pay as set forth in Company Disclosure Schedule ‎5.01, (ii) as expressly contemplated or permitted by this Agreement or the Brazilian Standby Purchase Agreement or as required by applicable Law, or Laws, requirements or official guidance relating to capital adequacy, including but not limited to 12 C.F.R. Parts 217 and discharge all lawful taxes325, assessmentsor (iii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), Company shall carry on its business, including the business of each of its Subsidiaries, only in the Ordinary Course of Business and consistent with prudent banking practice, and governmental charges in compliance in all material respects with all applicable Laws. Without limiting the generality of the foregoing, except (i) as set forth in Company Disclosure Schedule ‎5.01, (ii) as expressly contemplated or levies imposed upon permitted by this Agreement or the Company Brazilian Standby Purchase Agreement or upon its income and profitsas required by applicable Law, or upon any Laws, requirements or official guidance relating to capital adequacy, including but not limited to 12 C.F.R. Parts 217 and 325, or (iii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), Company and each of its propertySubsidiaries shall, before in respect of loan loss provisioning, securities, portfolio management, compensation and other expense management and other operations which might impact Company’s equity capital, operate only in all material respects in the same Ordinary Course of Business and in accordance with the limitations set forth in this ‎‎Section 5.01 unless otherwise consented to in writing by Buyer (such consent not to be unreasonably withheld or delayed), which for purposes of requesting and giving consent under this ‎‎Section 5.01, Company’s and Company Bank’s representative shall become be Company’s Chief Executive Officer (or such other person or persons designated in default, as well as all lawful claims for labor, materials writing by such Chief Executive Officer) and supplies which, if unpaid, might become a lien Buyer’s representative shall be Buyer’s Director of Mergers and Acquisitions (or charge upon such properties other person or any part thereof, persons designated in writing by such Director of Mergers and Acquisitions); provided, however, that with respect to Section ‎‎5.01(q)(i), Section ‎‎5.01(r) and Section ‎‎5.01(s), if Company sends a written request for Buyer’s consent together with supporting information and Buyer shall not have disapproved within two (2) Business Days upon receipt of such written request from Company, then such request shall be deemed to be approved by Buyer. Except (i) as set forth in Company Disclosure Schedule ‎5.01, (ii) as expressly contemplated or permitted by this Agreement or the Brazilian Standby Purchase Agreement or as required by applicable Law, or Laws, requirements or official guidance relating to capital adequacy, including but not limited to 12 C.F.R. Parts 217 and 325, or (iii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), Company and Company Bank will use commercially reasonable efforts to (i) preserve its business organizations and assets intact, (ii) keep available to itself and, after the Effective Time, Buyer the present services of the current officers and employees of Company and its Subsidiaries, (iii) preserve for itself and, after the Effective Time, Buyer the goodwill of its customers, employees, lessors and others with whom business relationships exist, and (iv) continue diligent collection efforts with respect to any delinquent loans and, to the extent within its control, not allow any material increase in delinquent loans. Without limiting the generality of and in furtherance of the foregoing, from the date of this Agreement until the Effective Time, except (i) as set forth in Company Disclosure Schedule ‎5.01, (ii) as expressly contemplated or permitted by this Agreement or the Brazilian Standby Purchase Agreement or as required by applicable Law, or Laws, requirements or official guidance relating to capital adequacy, including but not limited to 12 C.F.R. Parts 217 and 325, or (iii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on not permit its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contested; (ii) Do or cause to be done all things reasonably necessary to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful in the conduct of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred in the ordinary course of business, nor incur any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right of payment to the indebtedness evidenced by this Debenture.Subsidiaries to:

Covenants of Company. The Company covenants and agrees that, so long with the Purchaser as this Debenture shall be outstanding, it willfollows: (ia) Promptly pay and discharge all lawful taxesFollowing an exercise of the Warrants, assessments, and governmental charges or levies imposed upon the Company or upon will cause its income and profitstransfer agent promptly, or upon at the Company's expense, to issue certificates evidencing the shares of Common Stock being purchased through such exercise. In the event the Company for any reason, including without limitation the unavailability of its propertyauthorized but unissued shares, before does not cause the same shall become in defaultprompt issuance of such certificates, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required upon the written demand of the Purchaser redeem from the Purchaser the Warrants the Purchaser attempted to exercise or otherwise pay and discharge any to the Purchaser by way of liquidated damages for such tax, assessment, charge, levy or claim so long as breach against cancellation of such Warrants an amount per warrant equal to the validity thereof shall be contested in good faith remainder calculated by appropriate proceedings and subtracting (i) the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contested; Warrant exercise price from (ii) Do average closing asked price per share of Common Stock during the five trading days ending with the day on which the Purchaser exercises or cause attempts to be done all things reasonably necessary to preserve and keep in full force and effect its corporate existenceexercise the Warrant. (b) Promptly following the written request of the purchasers of a majority of the Units, rights and franchises and comply with all laws applicable to the Company; , at its expense, will prepare, file and prosecute diligently to effectiveness a registration statement under the Securities Act, which registration statement shall provide for the resale by the Purchaser of the shares of Common Stock (i) constituting part of the Units, (ii) for which the Warrants had been or may be exercised, (iii) At all times reasonably maintainwhich are otherwise held by Purchaser, preserve, protect and keep its property used or useful in the conduct of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To which Purchaser then has the extent right to acquire. The Company shall also prepare and file such amendments and 'supplements to such registration statement and the prospectus contained therein as may be necessary to make available a prospectus meeting the requirements of the Securities Act on as continuous a basis as practicable for such period as any Warrants issued pursuant hereto remain outstanding and for two years thereafter. (c) So long as any Warrants issued pursuant hereto remain outstanding and for two years thereafter, the company (i) will timely file all reports and other materials it is required to file pursuant to the Exchange Act and (ii) will not take any action to terminate the registration of its common Stock pursuantto the Exchange Act. (d) Diligently seek qualified candidates to serve as (i) chief executive officer, (ii) chief financial officer, (iii) vice president-sales, and (iv) at least two non-employee directors for the operation of its business, keep adequately insured Company; afford Purchaser an opportunity to meet with any candidate to whom the Company proposes to offer such a position; and offer such a position (or nomination therefore) to such a candidate only if such candidate is approved by financially sound reputable insurers, all property purchasers of a character usually insured by similar corporations majority of the Units. (e) Extend the registration rights provided in the Company's industry and carry such other insurance as is usually carried by similar corporations in Warrants to all shares of Common Stock which the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open Purchaser at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence time of any indebtedness (including without limitation, such registration owns or has the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred in the ordinary course of business, nor incur any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right of payment to the indebtedness evidenced by this Debentureacquire.

Covenants of Company. The a. At the time of Closing, the Company hereby covenants and agrees thatto convert the 250,000 shares of Company Preferred Stock acquired by BigHub from the Preferred Shareholders hereunder into 668,449 shares of Company Common Stock. b. Except as may be consented to by BigHub, so long as this Debenture which consent shall not be outstandingunreasonably withheld, it willfollowing the Closing, the Company: (i) Promptly pay and discharge all lawful taxes, assessmentsshall, and governmental charges or levies imposed upon the Company or upon its income and profits, or upon any shall cause each of its propertysubsidiaries to, before the same shall become in default, as well as all lawful claims for labor, materials conduct its operations according to their ordinary and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contestedusual course of business; (ii) Do shall notify BigHub of any emergency or cause to other change in the normal course of its or its subsidiaries' respective businesses or in the operation of its or its subsidiaries' respective properties and of any complaints, investigations or hearings (or communications indicating that the same may be done all things reasonably necessary to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Companycontemplated) of any governmental body or authority; (iii) At all times reasonably maintainshall not authorize or pay any dividends on or make any distribution with respect to its outstanding shares of stock other than the payment of dividends, preserve, protect and keep its property used or useful in the conduct form of its business in good repair95,588 shares of Company Common Stock, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct holders of its businessthe Company Preferred Stock; (iv) To the extent necessary for the operation shall not, and shall not permit any of its businesssubsidiaries to, keep adequately insured by financially sound reputable insurersauthorize, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct bookspropose or announce an intention to authorize or propose, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation enter into an agreement with respect theretoto, (x) secured by a lienany merger, mortgage consolidation or guarantee on the property business combination, (whether real y) any acquisition of assets or personal) securities or equipment any disposition of the Company and any refinancings assets or replacements thereto or trade debt or other current liabilities incurred securities not in the ordinary course of business, nor incur or (z) any indebtedness whatsoever which indebtedness does release or relinquishment of any material contract rights; (v) shall not, and shall not expressly provide that it is wholly subordinated permit any of its subsidiaries to, except in right the ordinary course of payment business in connection with employee incentive and benefit plans, programs or arrangements in existence on the date hereof, or as contemplated herein, purchase, exchange, convert or redeem any shares of its stock; and (vi) shall not, and shall not permit any of its subsidiaries to enter into any material agreement with aggregate consideration of $100,000 per year. c. The Company shall, as soon as practicable, upon the earlier of and with the proceeds from (i) a successful capital raising transaction contemplated by Section 8 hereof or (ii) the sale of INI, cause the redemption of the Series B Convertible Preferred Stock. d. The Company shall take all necessary action to cause Franx Xxxxx xxx Chet Xxxxxx xx be appointed to the indebtedness evidenced by this Debenture.Board of Directors of the Company as of the Closing Date and to serve until the next annual election of directors of the Company. In

Covenants of Company. The During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, Company covenants agrees, as to itself and agrees thatits Subsidiaries, except to the extent that Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), and except as required by this Agreement or as set forth in Section 5.01 of the Company Disclosure Schedule, 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 (subject to good faith disputes over such obligations), and, to the extent consistent with such business, use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, and others having business dealings with it, except in each case where the failure to do so long would not have a Company Material Adverse Effect. Except as required by this Debenture Agreement or as set forth in Section ------- 5.01 of the Company Disclosure Schedule, Company shall not (and shall not permit --------------------------------------- its Subsidiaries to), without the written consent of Parent (which consent shall not be outstandingunreasonably withheld or delayed): (a) accelerate, amend or change the period of exercisability of options or restricted stock granted under any employee stock plan of Company or any of its Subsidiaries or authorize cash payments in exchange for any options granted under any of such plans except as required by the terms of such plans or any related agreements in effect as of the date of this Agreement; (b) other than distributions from a Subsidiary of Company to Company, and except for the issuance of shares pursuant to the 100% stock dividend to be distributed by Company on or about March 13, 2000, declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock (other than dividends on Company Common Stock payable solely in shares of Company Common Stock), or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or purchase or otherwise 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 Company or any of its Subsidiaries; (c) transfer or license to any person or entity or otherwise extend, amend or modify in any material respect any rights to the Company Intellectual Property Rights other than on a non- exclusive basis in the ordinary course of business consistent with past practices; (d) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it will: to issue any such shares or other convertible securities, other than (i) Promptly pay the grant of options to purchase up to six million (6,000,000) shares (net of cancellations and discharge all lawful taxesgiving effect to the 100% stock dividend to be distributed by Company on or about March 13, assessments2000), in the aggregate consistent with past practices to existing or newly hired employees (which options will not be entitled to accelerated vesting as a result of the Merger), or (ii) the issuance of shares of Company Common Stock pursuant to the exercise of options outstanding on the date of this Agreement or granted in accordance with this Agreement, (iii) the issuance of shares of Company Common Stock to participants in the Company ESPP in accordance with the terms thereof, (iv) the issuance of rights pursuant to the Company Rights Plan in connection with the issuance of shares of Company Common Stock, and governmental charges (v) the issuance of shares pursuant to the 100% stock dividend to be distributed by Company on or levies imposed upon the Company or upon its income and profitsabout March 13, or upon any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contested2000; (iie) Do acquire or cause agree to be done all things reasonably necessary acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division, or otherwise acquire or agree to preserve acquire any assets other than inventory and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful other assets in the conduct ordinary course of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (ivf) To the extent necessary for the operation of its businesssell, keep adequately insured by financially sound reputable insurerslease, all property license or otherwise dispose of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct booksmaterial property or asset or a material amount of properties or assets, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice except for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred transactions in the ordinary course of business, nor or enter into any agreement, option or other arrangements (including any joint venture) involving the exclusive licensing of Company's name or system outside of the ordinary course of business or inconsistent with past practice; (g) (i) increase or agree to increase the compensation payable or to become payable to its officers or employees, except for increases in compensation of employees (other than officers) in accordance with past practices, (ii) grant any additional severance or termination pay to, or enter into any employment or severance agreements with, any employee or officer, (iii) enter into any collective bargaining agreement (other than as required by law or extensions to existing agreements in the ordinary course of business), (iv) establish, adopt, enter into or amend in any material respect 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 director, officer or employee, other than, with respect to employees who are not officers, in the ordinary course of business, or (v) take any action (other than action required or contemplated by this Agreement) that causes (or which together with the consummation of the Merger will cause) the acceleration of any options; (h) amend or propose to amend its Certificate of Incorporation or Bylaws, except as contemplated by this Agreement; (i) enter into or amend in any material respect any OEM agreement or any other agreements pursuant to which any third party is granted exclusive marketing, manufacturing or other rights with respect to any material Company product, process or technology; (j) amend or prematurely terminate any material contract, agreement or license to which it is a party except in the ordinary course of business; (k) waive or release any material right or claim, except in the ordinary course of business; (l) initiate any material litigation or arbitration proceeding; (m) incur any indebtedness whatsoever in excess of five million dollars ($5,000,000) for borrowed money other than in the ordinary course of business; (n) make or agree to make any new capital expenditure or expenditures, or enter into any agreement or agreements providing for capital expenditures which, individually, are in excess of one million dollars ($1,000,000) or, in the aggregate, are in excess of ten million dollars ($10,000,000) (except that Company and its Subsidiaries may make capital expenditures in the amounts contemplated by the budget previously delivered by Company to Parent); (o) make any material Tax election or settle or compromise any material Tax liability; (p) pay, discharge, settle or satisfy any material disputed claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than in the ordinary course of business; (q) amend or propose to amend the Company Rights Plan in any manner which indebtedness would impede the consummation of the Merger or which is otherwise adverse to the interests of Parent, other than any amendment in connection with a termination of this Agreement pursuant to Section 8.01(h); or --------------- (r) agree in writing or otherwise to take any of the actions described in Section 5.01(a) through Section 5.01(q). --------------- --------------- Notwithstanding anything to the contrary in this Section 5.01, if Company makes ------------ a request in writing to Parent (delivered in accordance with Section 9.02) ------------ seeking Parent's consent to any equity-based customer transaction or other business partnership or alliance that would otherwise be prohibited by this Section 5.01, and describing the material terms of such proposed transaction, ------------ partnership, or alliance, Parent shall respond to such request within ten (10) days after such request is deemed given pursuant to Section 9.02. If Parent ------------ does not expressly provide that it object in writing to such request within ten (10) days after such request is wholly subordinated deemed given pursuant to Section 9.02, Parent shall be deemed to have consented to such request, on ------------ the terms substantially as described in right of payment to the indebtedness evidenced by this Debenturesuch request.

Covenants of Company. The Except as expressly contemplated hereby, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, Company covenants agrees as to itself and agrees thatits Subsidiaries (except to the extent that Buyer shall otherwise consent in writing), so long to carry on its business in the ordinary course in substantially the same manner as previously conducted, to pay its debts and Taxes and perform other obligations when due, subject to good faith disputes over such debts, Taxes or obligations, and use commercially reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees (subject to the Company's right to terminate its employees consistent with past practices, and acknowledging that the persons currently serving as the Company's CEO and CFO are occupying such positions on an interim basis), and to preserve its relationships with customers, suppliers, distributors, and others having business dealings with it. Except as expressly contemplated by this Debenture Agreement or set forth in the Company Disclosure Schedule, Company shall be outstandingnot (and shall not permit any of its Subsidiaries to), without the written consent of Buyer: (a) Accelerate, amend or, except as contemplated by Schedule 6.2(a) hereof, change the period of exercisability of any outstanding Option or restricted stock granted under any Company Stock Plan or any other employee stock plan of Company or authorize cash payments in exchange for any Option granted under any of such plans except (i) as contemplated by Section 1.6 of this Agreement and (ii) for vesting or acceleration provided for by the terms of existing Options; (b) Declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock ; (c) Issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it will:to issue any such shares or other convertible securities, other than (i) the issuance of shares of Company Common Stock pursuant to the conversion of the Preferred Stock outstanding on the date of this Agreement or upon exercise of outstanding Options, (ii) the issuance of shares of Common Stock upon conversion by Seagate Technology, Inc. ("Seagate") of all or a portion of its Convertible Promissory Note dated December 10, 1999 from Company, (iii) Options granted in accordance with Section 5.2(b) or (c) below; (d) Acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division, or otherwise acquire or agree to acquire any assets (other than inventory, supplies and other items, in each case, in the ordinary course of business consistent with past practice); (e) Sell, lease, license or otherwise dispose of any of its properties or assets having a value in excess of $100,000, except for sales of inventory or products, in each case, in the ordinary course of business consistent with past practice provided Buyer will not unreasonably withhold its consent to Company's request for a waiver of this covenant; (i) Promptly pay and discharge Increase or agree to increase the compensation (including salary, bonus, benefits or other remuneration) payable or to become payable to its officers or employees except for increases in accordance with existing contractual commitments, all lawful taxes, assessmentsof which are disclosed on the Company Disclosure Schedule, and governmental charges customary annual salary increases (provided that the consent of Buyer shall be required for any proposed salary increase to any employee occupying the position of Vice President or levies imposed upon any higher ranking position), (ii) grant any severance or termination pay to, or enter into or amend any employment or severance agreements with, any employees or officers, other than (x) the payment of severance or termination pay in accordance with any existing contractual commitments or consistent with past practices (unless such contractual commitments are being modified or terminated at or prior to the Closing) or the terms of any Benefit Plan and (y) subject to Section 5.2(b) and (c) below, entering into employment agreements with new employees in the ordinary course of business consistent with past practice, (iii) enter into any collective bargaining agreement, (iv) establish, adopt, enter into or amend (except as may be required by law) any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination or severance or other plan, trust, fund, policy or arrangement for the benefit of any directors, officers or employees, or (v) forgive any indebtedness of any employee to Company or upon its income and profits, or upon any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contestedSubsidiaries; (iig) Do Amend or cause propose to be done all things reasonably necessary amend its certificate of incorporation or bylaws; (h) Make any loans to preserve any person or entity or guarantee any debt securities of others (other than as a result of the endorsement of checks for collection and keep for advances for employee reimbursable expenses, in full force each case in the ordinary course of business consistent with past practice); (i) Initiate, compromise, or settle any material litigation or arbitration proceeding; (j) Materially modify, amend or terminate any Company Material Contract (other than any immaterial modification or amendment to a purchase order in the ordinary course of business consistent with past practice), or waive, release or assign any material rights or claims, including any write-off or other compromise of any accounts receivable of Company or any of its Subsidiaries (provided that (x) Company may renew any existing Company Material Contract if no material amendment or modification is made thereto and effect its corporate existence(y) Company may extend, rights through a date not later than March 31, 2001 (provided that Company shall use commercially reasonable efforts not to extend such date beyond December 31, 2000), the exclusivity provision contained in that certain agreement dated December 12, 1997 between Company and franchises and comply with all laws applicable to the Ford Motor Company; (iiik) At all times reasonably maintainMake or rescind any Tax election, preserve, protect and keep its property used settle or useful in the conduct of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its businesscompromise any material Tax liability or amend any Tax return; (ivl) To the extent necessary for the operation Change its methods of its businessaccounting as in effect at December 31, keep adequately insured 1999 except as required by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industryUS GAAP; (vm) At all times keep true Make or commit to make any capital expenditures in any fiscal period that exceed by more than ten percent (10%) Company's cumulative capital budget through the end of such fiscal period, which budget was furnished by Company and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; andpreviously approved by Buyer; (vin) Except Enter into any new license for any intellectual property rights to or from any third party other than in the incurrence ordinary course of business consistent with past practice; provided that any indebtedness (including without limitation, the incurrence of any guarantee source code license agreement -------- or contingent payment obligation with respect thereto) secured by a lien, mortgage exclusive or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred semi-exclusive license agreement shall not be deemed to be "in the ordinary course of business" and shall not be permitted hereby; (o) Revalue any of the significant assets of Company or any of its Subsidiaries, nor incur including the writing down of inventory other than in the ordinary course of business consistent with past practice; (p) Close any indebtedness whatsoever material facility or office; (q) Invest funds in debt securities or other instruments maturing more than 90 days after the date of investment; (r) Fail to pay accounts payable and other obligations in the ordinary course of business in a manner consistent with past practice or accelerate the payment of any accounts receivable other than in the ordinary course of business in a manner consistent with past practice; (s) Mortgage or pledge any of its property or assets or subject any such assets to any material security interest, lien or other encumbrance (other than in connection with a possible secured loan from Seagate in a principal amount not to exceed $5,000,000); (t) Make any payment or other distribution to any Affiliate of Company except for normal employment compensation consistent with past practices; (u) Materially amend or alter in any way the employee Benefit Plans identified in Section 3.13 of the Company Disclosure Schedule, except as may be required by applicable law; or (v) Take, or agree in writing or otherwise to take, any of the actions described in paragraphs (a) through (u) above. Notwithstanding the foregoing, upon prior notice to, but without the prior consent of, Buyer or Sub, Company shall be permitted to take any and all actions which indebtedness does not expressly provide that it is wholly subordinated in right may be reasonably necessary or appropriate to eliminate the application of payment Code Section 280G to the indebtedness evidenced transactions contemplated by this DebentureAgreement, including, without limitation, amending Options and amending compensation arrangements to eliminate any accelerated vesting or severance provisions.

Covenants of Company. The (a) Company's Negative Covenants. From the date hereof through the Closing, without the prior written consent of Parent (which will not be unreasonably withheld or delayed), except for such rate increases as the Company covenants Entities may implement under applicable Legal Requirements and agrees thatexcept as set forth on Schedule 5.2 or unless otherwise required or permitted by any other provision of this Agreement or any Related Agreement, so long as this Debenture the Company shall be outstandingnot, it willand shall cause the other Company Entities not to: (i) Promptly pay take any action which would cause the representations and discharge all lawful taxes, assessments, and governmental charges or levies imposed upon warranties made by the Company in this Agreement not to be true, correct and accurate, in all material respects (determined as provided in Section 6.4) as of the Closing; (ii) modify in any material respect, terminate, renew for a period extending past the Termination Date, suspend or upon its income and profits, or upon abrogate any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, material Contract; provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof Entities shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such taxentitled, assessment, charge, levy or claim so contested; (ii) Do or cause to be done all things reasonably necessary to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful in the conduct of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred in the ordinary course of business, nor incur to enter into new contracts, agreements, commitments, arrangements or understandings which would involve payments by any of the Surviving Corporation or any Company Entity not in excess of $500,000 individually or $10,000,000 in the aggregate; (A) terminate any Franchise or material System Right or (B) modify in any material respect, renew for a period extending past the Termination Date, suspend or abrogate any Franchise or material System Right; (iv) except as required by applicable Legal Requirements, change any policy regarding any marketing, subscriber installation or collection practices that are inconsistent in any material respect with such practices of the Company Entities for the periods covered by the Company SEC Reports; (v) dispose of any Assets, except for sales of non-material assets in the ordinary course of business and consistent with past practices (including practices during the periods covered by the Company SEC Reports); (vi) grant or agree to grant any increase in the rates of salaries or compensation payable to employees of the Company Entities (other than as required by law and regularly scheduled bonuses and increases in the ordinary course of business); (vii) amend its articles of incorporation or bylaws or other applicable governing instrument; (viii) split, combine, subdivide or reclassify any shares of its capital stock or other equity interests or declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof), other than regular quarterly cash dividends not in excess of $0.08 per share per quarter, in respect of its capital stock, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase or otherwise acquire any of its securities or any securities of the Company or any other Company Entity, except for dividends paid by any Company Entity that is, directly or indirectly, wholly-owned by the Company; (ix) adopt a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization; (x) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock of any class or other equity interests or any securities convertible into or exercisable for, or any rights, warrants or options to acquire, any such capital stock or other equity interests, other than the issuance of shares of Company Common Stock upon the exercise of stock options in accordance with their present terms; (xi) amend any existing Benefit Plan or establish or adopt any new Benefit Plan (other than as required by Legal Requirements or done in the ordinary course of business); (xii) enter into any new, or amend in any material respect any existing, employment, severance or consulting agreement, sales agency or other Contract with respect to the performance of personal services, except (A) any such new agreement providing for cash compensation of less than $100,000 per annum entered into in the ordinary course of business; and (B) any individuals hired on an at-will basis to replace current employees or to service customer contracts that commence after the date hereof; (xiii) except for capital expenditures, which shall be governed by Section 5.8, acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, other than (A) pursuant to agreements in effect as of the date hereof, or (B) assets having a fair market value not exceeding $5,000,000 in the aggregate (and not involving Basic Subscribers in the aggregate of 1,500 or more); (xiv) incur, assume or guarantee any indebtedness whatsoever for borrowed money other than in the ordinary course of business and in amounts and on terms consistent with past practices; or (xv) enter into or amend in any material respect (A) any joint venture, partnership or other similar arrangement (other than joint ventures, partnerships or similar arrangements involving, in the aggregate, no more than 1,500 Basic Subscribers), (B) any agreement for the provision by one or more third parties of telephony, data or other services through the facilities of one or more of the Cable Systems of any Company Entity, which indebtedness does is exclusive or which cannot expressly provide that it be terminated within six months of the Effective Time without any penalty, or (C) any agreement providing for the right to use the facilities of one or more of the Cable Systems of the Company Entities, which is wholly subordinated in right exclusive or which cannot be terminated within six months of payment to the indebtedness evidenced by this DebentureEffective Time without any penalty.

Covenants of Company. The Company covenants and agrees thatthat until the full and final payment of all payments due to NPI Purchaser under the Net Profits Documents and the termination of this Agreement and the Net Profits Interest, so long as this Debenture shall be outstanding, it willunless NPI Purchaser has previously agreed otherwise: (a) Company will perform all of its covenants and duties under the Net Profits Documents all as fully as if they were set out in full herein. (b) In addition to any reports and information specifically required by the terms of this Agreement or the Conveyance, Company agrees to furnish to NPI Purchaser full information, at all reasonable times, which NPI Purchaser may request concerning any covenant, provision or condition of the Net Profits Documents or any matter or records in connection with such documents or, subject to confidentiality undertakings with Third Parties, with the operation of, reserve engineering for, production from, or accounting for the Subject Interests. Subject to any restrictions on Company's right to do so under applicable operating agreements or similar contracts, Company will permit representatives designated by NPI Purchaser, including independent accountants, agents, attorneys, and other Persons, to visit and inspect the Subject Interests and Company's books and records pertaining to the Subject Interests (and to make copies and photocopies from such records and to write down and record such information as such representatives may request, provided that no copies may be made of geological or seismic data), and Company shall permit NPI Purchaser and its designated representatives reasonably to investigate and verify the accuracy of information furnished to NPI Purchaser hereunder or in connection herewith and to discuss all such matters with its officers, employees and representatives. (c) If any Person ever challenges or attacks (i) Promptly pay the validity or priority of any Net Profits Document or of any rights, titles, or interests created or evidenced thereby or (ii) the title of Company to any portion of the Subject Interests or of NPI Purchaser to any part of a Net Profits Interest ("Title Claim"), then upon learning thereof Company will give prompt written notice thereof to NPI Purchaser and discharge all lawful taxes, assessmentsat Company's own cost and expense will defend the NPI Purchaser and diligently endeavor to defeat such challenge or attack and to cure any defect that may be developed or claimed, and governmental charges Company will take all necessary and proper steps for the defense of any legal proceedings with respect thereto, including the employment of counsel (at reasonable fees) to represent Company and NPI Purchaser, the prosecution or levies imposed upon defense of litigation, and the release or discharge of all adverse claims. The Company shall not settle any Title Claim in a manner that would in any way affect the validity or priority of any Net Profits Document or of any of NPI Purchaser's rights, titles, or interests created or evidenced thereby or NPI Purchaser's Net Profits Interest without the prior written consent of the NPI Purchaser. Unless the Company notifies the NPI Purchaser, (whether or upon not named as a party to legal proceedings with respect thereto), in writing within 30 days of the Company learning of a Title Claim that the Company will defend NPI Purchaser against any such Title Claim, then NPI Purchaser is hereby authorized and empowered to take such steps as in its income judgment and profitsdiscretion may be necessary or proper for the defense of any such legal proceedings or the protection of the validity or priority of the Net Profits Documents and the rights, titles, and interests created or evidenced thereby, including the employment of one independent counsel at reasonable fees to represent all of the NPI Purchasers, the prosecution or defense of litigation, the compromise or discharge of any adverse claims made with respect to a Net Profits Interest, the purchase of any tax title and the removal of prior liens or security interests, and all expenditures so made of every kind and character shall be reimbursed by Company (which obligation Company hereby expressly promises to pay on demand) owing by Company to NPI Purchaser and shall bear interest from the date demanded until paid at the Agreed Rate. After notice from the Company to the NPI Purchaser of its assumption of the defense of such Title Claim, the Company shall not be liable to the NPI Purchaser under this Section 6.1(c) for any legal expenses subsequently incurred by the NPI Purchaser in connection with the defense thereof, except for such expenses incurred in connection with cooperation with, or upon any of its propertyat the request of, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, Company; provided, however, that the NPI Purchaser shall have the right to employ one counsel to represent all of the NPI Purchasers if, in the NPI Purchaser's reasonable judgment, based upon the advice of counsel, it is advisable, in light of the separate interests of the NPI Purchaser and the Company, for the NPI Purchaser to be represented by separate counsel, and in that event the reasonable fees and expenses of such separate counsel shall be paid by the Company. (d) Company will, on request of NPI Purchaser, (i) promptly correct any defect, error or omission which may be discovered in the contents, execution or acknowledgment of any Net Profits Document that materially affects or that may materially affect NPI Purchaser's right to purchase Net Profits Interests in the Offered Bundles pursuant to this Agreement, its title to the Net Profits Interest or its right to receive NPI Payments; (ii) execute, acknowledge, deliver and record or file such further instruments and do such further acts as may be necessary, desirable or proper for the specific and exclusive purpose of providing a proper conveyance of the Net Profits Interest to carry out more effectively the purposes of the Net Profits Documents and to more fully identify and make subject to the Conveyance any property intended to be covered thereby, including any renewals, additions, substitutions, replacements, or appurtenances to the Subject Interests; and (iii) execute, acknowledge, deliver, and file or record any document or instrument reasonably requested by NPI Purchaser to protect its rights, title and interests under the Net Profits Documents against the rights or interests of any Third Party. Company shall pay all reasonable costs connected with any of the foregoing. (e) Company will not cause or permit any portion of the Subject Interests or Company to be required in material violation of any Environmental Laws or do anything or permit anything to pay be done which will subject Company or any portion of the Subject Interests to any material remedial obligations under any Environmental Laws, assuming in each case disclosure to the applicable governmental authorities of all relevant facts, conditions and discharge circumstances, and Company will promptly notify NPI Purchaser in writing of any such taxexisting, assessmentpending or, chargeto the best knowledge of Company, levy threatened investigation or claim so long as inquiry by any private party or governmental authority in connection with any Environmental Laws. Company will take all steps necessary to determine that no Hazardous Substances are disposed of or otherwise released or being released on or to any portion of the validity thereof shall be contested Subject Interests in good faith by appropriate proceedings violation of any Environmental Laws. Company will not cause or permit the disposal or other release of any Hazardous Substance on or to the Subject Interests in violation of any Environmental Law and covenants and agrees to remove or remediate any Hazardous Substance on the Subject Interests. NPI Purchaser has no responsibility for compliance with any Environmental Laws and the Company shall set aside on its books adequate reserves indemnify the NPI Purchaser from any and all liabilities, costs, expenses (including, without limitation, litigation costs and attorney fees), damages, or liens incurred by NPI Purchaser with respect to any such taxdemands, assessmentjudgments, chargesuits, levy causes of action, and claims of any kind or claim so contested; (ii) Do character arising or cause to be done all things reasonably necessary to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable arise from the presence of any adverse environmental condition or damage located on or attributable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful in the conduct of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred in the ordinary course of business, nor incur any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right of payment to the indebtedness evidenced by this DebentureSubject Interests.

Covenants of Company. The Except as otherwise specifically contemplated by this Agreement, as set forth in Section 4.1 of the Company Disclosure Schedule, or as required by Applicable Law, the Company covenants and agrees that, so long as during the period from the date hereof to the earlier of the termination of this Debenture Agreement in accordance with its terms and the Effective Time, unless Parent shall otherwise consent in writing, (i) the businesses of the Company and its Subsidiaries shall be outstandingconducted, it willin all material respects, in the ordinary course of business and in a manner consistent with past practice, including (x) operating the business of Aston in accordance with the provisions of the Management Agreement and (y) using the Operating Allocation (as defined in the Management Agreement) to pay for the expenses, liabilities and other costs of the business of Aston in a manner consistent with past practice; and (ii) the Company shall use reasonable best efforts to preserve substantially intact the business organization of the Company and its Subsidiaries, to keep available the services of the key officers and key employees of the Company and its Subsidiaries and to preserve the present relationships of the Company and its Subsidiaries with Clients and other persons with which the Company or any of its Subsidiaries has business relations. Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries shall (except as otherwise specifically contemplated by this Agreement, as set forth in Section 4.1 of the Company Disclosure Schedule or as required by Applicable Law), between the date of this Agreement and the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, directly or indirectly do, any of the following without the prior written consent of Parent: (a) cause or permit Aston to take any action which would require the consent or approval of, or notice to, the Company pursuant to any provision of the Management Agreement; (b) make or commit to make any capital expenditures, other than expenditures which would be permitted under clause (a) above; (c) incur any indebtedness for borrowed money or guarantee such indebtedness of another Person or enter into any “keep well” or other agreement to maintain the financial condition of another Person or make or modify any loans or advances of borrowed money or capital contributions to, or equity investments in, any other Person or issue or sell any debt securities; (d) (i) amend its certificate of incorporation or by-laws or other governing documents; (ii) split, combine or reclassify the outstanding shares of its capital stock or other ownership interests or declare, set aside or pay any dividend payable in cash, stock or property or make any other distribution with respect to such shares of capital stock or other ownership interests (except that (x) Aston may make distributions to the Company in accordance with the provisions of the Management Agreement, (y) the Company may pay regular dividends to holders of Company Common Stock in an amount up to $0.05 per share per quarter if declared by the Board of Directors at similar times as and in accordance with past practice and to holders of Series B Convertible Preferred Stock at the applicable dividend rate as set forth in the Certificate of Designation of Series B Convertible Preferred Stock, and (z) the Company may pay the Special Dividend pursuant to Section 5.2); (iii) redeem, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or other ownership interests; or (iv) sell or pledge any stock or other ownership interests of any of its Subsidiaries; (e) (i) issue or sell or agree or offer to issue or sell, or accelerate the vesting of or right to receive, or grant, confer or award any options, warrants, convertible securities or rights of any kind to acquire any shares of, its capital stock of any class; (ii) except for sales or dispositions of obsolete assets, sell, pledge, lease, license, dispose of or encumber in whole or in part any assets (including any Intellectual Property or indebtedness owed to them or any claims held by them) or agree to do any of the foregoing; or (iii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership, limited liability company or other business organization or division thereof or any assets (other than inventory and other immaterial assets in the ordinary course of business consistent with past practice), or make any investment, either by purchase of stock or other securities, or contribution to capital, in any other Person; (f) (i) make any change in the compensation or fringe benefits payable or to become payable to, or grant any termination or severance pay to, any of the Company’s or its Subsidiaries’ present or former directors, officers, members of the board of managers, partners, shareholders, owners, employees, agents or independent contractors, except that Aston may make any changes in compensation or fringe benefits payable provided that such changes, in the aggregate, are not material to Aston; (ii) enter into or modify any collective bargaining agreement, bonus, equity, option, profit sharing, compensation, welfare, retirement, or other similar arrangement, or any employment contract; or (iii) enter into, amend or otherwise modify any contract, agreement, arrangement or understanding with the Aston Management Owners, members of their Immediate Family or their respective Affiliates; except, in each case, (x) for actions necessary to satisfy existing contractual obligations under Company Plans or any agreement existing as of the date of this Agreement as disclosed on Schedule 4.1(f), or (y) as required by Applicable Law; (i) Promptly pay and discharge all lawful taxesmake or change any material Tax election, assessmentswaive or extend the statute of limitations in respect of material Taxes, and governmental charges or levies imposed upon the Company or upon its income and profitsamend any material Tax Return, or upon enter into any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves closing agreement with respect to any such taxmaterial Tax, assessmentsettle any material Tax claim or assessment or surrender any right to a claim for a material Tax refund, charge(ii) change any method or principle of Tax accounting or change any annual Tax accounting period, levy (iii) voluntarily change regular independent accountants, or claim so contested(iv) make an election or take any other action that would cause Aston to cease to be a partnership or a disregarded entity for U.S. federal income Tax purposes (and for applicable state and local income Tax purposes); (iih) Do pay, discharge or cause satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), except the payment, discharge or satisfaction of liabilities or obligations in the ordinary course of business consistent with past practice or, in the case of Aston, to be done all things reasonably necessary the extent the amounts due in connection with such payment, discharge or satisfaction of claims, liabilities or obligations are payable solely out of the Operating Allocation, or waive, release, grant or transfer any rights of material value or modify or change in any material respect any existing contract, agreement, commitment, understanding or other arrangement; (i) settle or compromise any Action, except for any settlement or compromise of an Action by Aston which would not require the consent or approval of, or notice to, the Company pursuant to preserve any provision of the Management Agreement; (j) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries or otherwise alter through merger, liquidation, reorganization, restructuring or any other fashion the corporate structure and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to ownership of any Subsidiary of the Company; (iiik) At all times reasonably maintainamend, preservemodify, protect supplement or terminate, or agree to waive or consent to any noncompliance under, or fail to diligently enforce the Company’s and keep its property used Subsidiaries’ rights under (x) any non-compete agreement, non-solicitation and/or non-acceptance agreement, covenant not to disclose confidential information or useful other similar agreement with respect to any current or former employee or independent contractor of the Company or its Subsidiaries in effect as of the conduct date hereof, or (y) any of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its businessEmployment Agreements; (ivl) To amend or modify an existing confidentiality or non-disclosure agreement or enter into a new confidentiality or non-disclosure agreement, except that (i) the extent necessary for Company and its Subsidiaries may take such action as provided in Section 5.5(b)(iii), (ii) the operation of Company and its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee Subsidiaries may enter into confidentiality or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation non-disclosure agreements with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment to information of the Company and any refinancings its Subsidiaries in order to comply with Regulation FD, and (iii) Aston may amend, modify or replacements thereto enter into a confidentiality or trade debt or other current liabilities incurred in the ordinary course of business, nor incur any indebtedness whatsoever which indebtedness non-disclosure agreement provided that such agreement does not expressly provide bind the Company or its Affiliates (other than Aston); or (m) take, or offer or propose to take, or agree to take in writing or otherwise, any of the actions described in Sections 4.1(a) through 4.1(l) or any action that it is wholly subordinated would reasonably be expected to result in right any of payment to the indebtedness evidenced by this Debentureconditions set forth in Article VI not being satisfied.

Covenants of Company. The Company covenants and agrees that, so long with the Purchaser as this Debenture shall be outstanding, it willfollows: (ia) Promptly pay and discharge all lawful taxesFollowing an exercise of the Warrants, assessments, and governmental charges or levies imposed upon the Company or upon will cause its income and profitstransfer agent promptly, or upon at the Company's expense, to issue certificates evidencing the shares of Common Stock being purchased through such exercise. In the event the Company for any reason, including without limitation the unavailability of its propertyauthorized but unissued shares, before does not cause the same shall become in defaultprompt issuance of such certificates, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required upon the written demand of the Purchaser redeem from the Purchaser the Warrants the Purchaser attempted to exercise or otherwise pay and discharge any to the Purchaser by way of liquidated damages for such tax, assessment, charge, levy or claim so long as breach against cancellation of such Warrants an amount per warrant equal to the validity thereof shall be contested in good faith remainder calculated by appropriate proceedings and subtracting (i) the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contested; Warrant exercise price from (ii) Do average closing asked price per share of Common Stock during the five trading days ending with the day on which the Purchaser exercises or cause attempts to be done all things reasonably necessary to preserve and keep in full force and effect its corporate existenceexercise the Warrant. (b) Promptly following the written request of the purchasers of a majority of the Units, rights and franchises and comply with all laws applicable to the Company; , at its expense, will prepare, file and prosecute diligently to effectiveness a registration statement under the Securities Act, which registration statement shall provide for the resale by the Purchaser of the shares of Common Stock (i) constituting part of the Units, (ii) for which the Warrants had been or may be exercised, (iii) At all times reasonably maintainwhich are otherwise held by Purchaser, preserve, protect and keep its property used or useful in the conduct of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To which Purchaser then has the extent right to acquire. The Company shall also prepare and file such amendments and 'supplements to such registration statement and the prospectus contained therein as may be necessary to make available a prospectus meeting the requirements of the Securities Act on as continuous a basis as practicable for such period as any Warrants issued pursuant hereto remain outstanding and for two years thereafter. (c) So long as any Warrants issued pursuant hereto remain outstanding and for two years thereafter, the company (i) will timely file all reports and other materials it is required to file pursuant to the Exchange Act and (ii) will not take any action to terminate the registration of its common Stock pursuantto the Exchange Act. (d) Diligently seek qualified candidates to serve as (i) chief executive officer, (ii) chief financial officer, (iii) vice president-sales, and (iv) at least two non-employee directors for the operation of its business, keep adequately insured Company; afford Purchaser an opportunity to meet with any candidate to whom the Company proposes to offer such a position; and offer such a position (or nomination therefore) to such a candidate only if such candidate is approved by financially sound reputable insurers, all property purchasers of a character usually insured by similar corporations majority of the Units. (e) Extend the registration rights provided in the Company's industry and carry Warrants to all shares of Common Stock which the Purchaser at the time Of any such other insurance as is usually carried by similar corporations in registration owns or has the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred in the ordinary course of business, nor incur any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right of payment to the indebtedness evidenced by this Debentureacquire.

Covenants of Company. The Company covenants and agrees with the Holder that, so long as any amounts of principal or interest remain unpaid under this Debenture shall be outstandingNote, it will: (i) Promptly not incur any indebtedness for borrowed money, except for such indebtedness as is outstanding on the date of this Note and indebtedness incurred by the Company as interim financing in connection with a public offering of its Common Stock, or permit any lien, security interest or encumbrance to be created in or with respect to any asset of the Company, whenever acquired, except for any such as are in effect on the date of this Note and except for purchase money security interests in assets acquired by the Company after the date of this Note; (ii) not issue any additional shares of capital stock (or any option or warrant to purchase, or securities which are convertible into, shares of its Common Stock) if after such issuance the outstanding shares of capital stock of the Company (taking into account shares issuable in respect of such options, warrants or convertible securities) will exceed 31,943,210 shares of common stock (or such other number of shares as the presently outstanding shares of Common Stock of the Company may be converted), provided, however, that this paragraph shall not apply to shares of Common Stock issued by the Company in connection with any acquisition by the Company of another business or with a public offering of its Common Stock (or interim financing relating to such offering); (iii) promptly pay and discharge all lawful amounts as and when due and to become due on all indebtedness of the Company which is senior to the indebtedness represented by this Note and all taxes, assessments, assessments and governmental charges or levies imposed upon the Company or upon its income and profits, or upon any of its property, before the same shall become in defaulta lien upon the Company's assets or property, as well as all lawful claims for labor, materials and supplies which, if unpaid, might would become a lien or charge upon such properties or any part thereof, ; provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall have set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contested; (iiiv) Do not merge into any other corporation or cause to be done all things reasonably necessary to preserve and keep in full force and effect dispose of its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful assets other than in the conduct ordinary course of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry;, (v) At all times keep true maintain insurance for its assets and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for business operations in amounts of coverage not less than the inspection amounts in effect on the date of Payee or its agentsthis Note; and (vi) Except for the incurrence comply fully with its obligations under that certain Purchase Agreement of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of even date herewith between the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred in the ordinary course of business, nor incur any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right of payment to the indebtedness evidenced by this DebentureHolder ("Purchase Agreement").

Covenants of Company. Section 5.1 Conduct of Business of the Company The Company covenants and agrees thatthat during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms, so long except (i) as disclosed in Section 5.1 of the Company Disclosure Letter, (ii) with the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), (iii) as is required or expressly permitted by this Debenture Agreement, (iv) as contemplated by the Pre-Acquisition Reorganization or (v) as is otherwise required by applicable Law or any Material Contract: (a) the business of the Company and its subsidiaries shall be outstandingconducted only in the ordinary course of business, it willand the Company shall use commercially reasonable efforts to maintain and preserve its and its subsidiaries’ business organization, assets, properties, employees, goodwill and business relationships with material customers, suppliers, partners and other persons with which the Company or any of its subsidiaries has a material business relationship; (b) without limiting the generality of Section 5.1(a), the Company shall not, and shall not permit any of its subsidiaries to, directly or indirectly: (i) Promptly pay and discharge all lawful taxes, assessments, and governmental charges amend the Company’s Constating Documents or levies imposed upon other comparable organizational documents of the Company or upon its income and profits, or upon any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contestedsubsidiaries; (ii) Do declare, set aside or cause to be done all things reasonably necessary to preserve pay any dividend or other distribution or payment (whether in cash, shares or property), in each case in respect of the securities of any subsidiary owned by a person other than the Company or its subsidiaries, other than cash dividends by the Company or dividends or other distributions or payments between two or more wholly-owned subsidiaries of the Company or between any of its wholly-owned subsidiaries and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintainissue, preservegrant, protect and keep sell, encumber or pledge or agree to issue, grant, sell, encumber or pledge any shares of the Company or its property used subsidiaries, or useful in securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares of the conduct Company or its subsidiaries, other than the issuance of its business in good repair, working order and condition, and from time Company Shares pursuant to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto the terms of securities issued as shall be reasonably required in at or prior to the conduct of its businessdate hereof pursuant to the Equity Plans; (iv) To the extent necessary for the operation redeem, purchase or otherwise acquire any of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such outstanding securities other insurance than (A) as is usually carried required by similar corporations in the Company's industryterms of such securities, (B) with respect to any Financial Indebtedness, as is required by the terms of such Financial Indebtedness, or (C) as is required under existing Contracts; (v) At all times keep true and correct booksamend the terms of any of its securities, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice including any Company Options, DSUs, PSUs, RSUs or other awards outstanding under the Equity Plans, other than as required to give effect to the Arrangement; (vi) adopt a plan of liquidation or resolution providing for the inspection liquidation or dissolution of Payee the Company or any of its subsidiaries; (vii) split, combine or reclassify any of the Company Shares or shares of a subsidiary; (viii) reorganize, amalgamate or merge with any other person; (ix) make, rescind or change any election with respect to Taxes; (x) except as would not reasonably be expected to cause a Material Adverse Effect, file any amended Returns, settle any material Tax claim or dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any of its subsidiaries; (xi) enter into any closing agreement regarding Taxes, surrender any right to claim a material refund of Taxes or amend any of its transfer pricing policies; (xii) knowingly take any action or enter into any transaction that would have the effect of reducing or eliminating the amount of the tax cost “bump” pursuant to paragraphs 88(1)(c) and (d) of the Tax Act otherwise available to Purchaser and/or its affiliates in respect of any property owned or to be owned directly or indirectly by the Company or its agentsaffiliates; (xiii) amend or modify in any material respect or terminate or waive, release, grant, transfer or exercise any material right under any Material Contract or enter into any Contract that would be a Material Contract if in effect on the date hereof, except as otherwise expressly permitted by this Agreement; (xiv) make any capital expenditure or commitment to do so which exceeds $500,000; (xv) acquire any interest in any real property; (xvi) enter into, modify or terminate any Contract with Fuzhou or any of its affiliates; or (xvii) enter into, modify or terminate any Contract with respect to any of the foregoing; (c) the Company shall not, and shall not permit any of its subsidiaries to, directly or indirectly, except in the ordinary course of business: (i) sell, pledge, lease, dispose of, or allow any Encumbrance (other than Permitted Encumbrances) directly or indirectly, in one transaction or in a series of related transactions, any of the Company’s or its subsidiaries’ assets; (ii) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets) any corporation, partnership or other business organization or division thereof, or make any investment either by the purchase of securities, contributions of capital or property transfer, or purchase of any property or assets of any other person; (iii) commence, waive, release, assign, settle or compromise any action or claim in excess of an amount of $500,000 individually or $1,000,000 in the aggregate; (iv) make any changes in financial accounting methods, principles, policies or practices, except as required, in each case, by IFRS or by applicable Law; (v) enter into or terminate any xxxxxx, derivatives, swaps or other financial instruments or other like transaction; (vi) except as contemplated in this Agreement, amend, modify, terminate, cancel or let lapse any material insurance (or re-insurance) policy of the Company or any of its subsidiaries in effect on the date of this Agreement unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and re-insurance companies of nationally recognized standing having comparable deductibles and providing coverage equal to or greater than the coverage under the terminated, cancelled or lapsed policies for substantially similar premiums are in full force and effect; or (vii) authorize, agree, resolve or otherwise commit to do any of the foregoing; (d) except as is required in order to comply with applicable Laws any Company Plans or Employment Contracts, neither the Company nor any of its subsidiaries shall: (i) other than in the ordinary course of business, grant to any officer or director of the Company or any of its subsidiaries any salary increase; (ii) enter into or amend any employment, deferred compensation or other similar Contract with any officer or director of the Company or any of its subsidiaries; (iii) grant, amend or modify any severance, change of control or termination payment to or enter into any employment agreement with any officer or director of the Company or any of its subsidiaries; (iv) increase any benefits payable to any officer or director of the Company or its subsidiaries under its current severance or termination pay policies; (v) enter into any collective agreement or other agreement with a labour organization representing any employees of the Company or any of its subsidiaries; (vi) adopt or materially amend any Company Plan; or (vii) enter into any staffing, consulting or similar agreement with a labour staffing agency; provided that, the Company may, and may permit any of its subsidiaries, to expend or commit to expend amounts with respect to (i) amounts payable upon a change of control of the Company or any of its subsidiaries pursuant to the Company Plans or Employment Contracts existing on the date hereof, (ii) amounts payable in connection with bonuses, long-term incentive awards (including the Equity Plans) or other compensation or amounts otherwise payable under Section 2.10 pursuant to existing Contracts which amounts had been earned in prior periods but not yet paid and/or (iii) amounts payable in connection with fees, penalties or other amounts arising from change of control provisions; and (vie) Except for the incurrence Company shall not, and shall not permit any of its subsidiaries to, directly or indirectly, incur any indebtedness for borrowed money or guarantees thereof except for indebtedness: (including without limitation, i) required to be incurred under the incurrence Loan Agreements; (ii) for borrowed money required to be incurred pursuant to agreements in effect prior to the execution of any guarantee or contingent payment obligation with this Agreement; or (iii) in respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company accounts payable and any refinancings or replacements thereto or trade debt or other current accrued liabilities incurred in the ordinary course of business. Nothing contained in this Agreement is intended to give Purchaser, nor incur any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in directly or indirectly, the right to control or direct the operations of payment the Company prior to the indebtedness evidenced by Effective Time. Prior to the Effective Time, Company shall exercise, consistent with the terms and conditions of this DebentureAgreement, complete control and supervision over its and its subsidiaries’ operations. Nothing in this Agreement, including any of the restrictions forth in this Agreement, will be interpreted in such a way as to place the Company and/or its subsidiaries in violation of applicable Law.

Covenants of Company. The Company covenants During the period from the date of this Agreement and agrees thatcontinuing until the Effective Time, so long as this Debenture shall be outstanding, it will: except (i) Promptly pay as set forth in Company Disclosure Schedule 5.01, (ii) as expressly contemplated or permitted by this Agreement or the Brazilian Standby Purchase Agreement or as required by applicable Law, or Laws, requirements or official guidance relating to capital adequacy, including but not limited to 12 C.F.R. Parts 217 and discharge all lawful taxes325, assessmentsor (iii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), Company shall carry on its business, including the business of each of its Subsidiaries, only in the Ordinary Course of Business and consistent with prudent banking practice, and governmental charges in compliance in all material respects with all applicable Laws. Without limiting the generality of the foregoing, except (i) as set forth in Company Disclosure Schedule 5.01, (ii) as expressly contemplated or levies imposed upon permitted by this Agreement or the Company Brazilian Standby Purchase Agreement or upon its income and profitsas required by applicable Law, or upon any Laws, requirements or official guidance relating to capital adequacy, including but not limited to 12 C.F.R. Parts 217 and 325, or (iii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), Company and each of its propertySubsidiaries shall, before in respect of loan loss provisioning, securities, portfolio management, compensation and other expense management and other operations which might impact Company’s equity capital, operate only in all material respects in the same Ordinary Course of Business and in accordance with the limitations set forth in this Section 5.01 unless otherwise consented to in writing by Buyer (such consent not to be unreasonably withheld or delayed), which for purposes of requesting and giving consent under this Section 5.01, Company’s and Company Bank’s representative shall become be Company’s Chief Executive Officer (or such other person or persons designated in default, as well as all lawful claims for labor, materials writing by such Chief Executive Officer) and supplies which, if unpaid, might become a lien Buyer’s representative shall be Buyer’s Director of Mergers and Acquisitions (or charge upon such properties other person or any part thereof, persons designated in writing by such Director of Mergers and Acquisitions); provided, however, that with respect to Section 5.01(q)(i), Section 5.01(r) and Section 5.01(s), if Company sends a written request for Buyer’s consent together with supporting information and Buyer shall not have disapproved within two (2) Business Days upon receipt of such written request from Company, then such request shall be deemed to be approved by Buyer. Except (i) as set forth in Company Disclosure Schedule 5.01, (ii) as expressly contemplated or permitted by this Agreement or the Brazilian Standby Purchase Agreement or as required by applicable Law, or Laws, requirements or official guidance relating to capital adequacy, including but not limited to 12 C.F.R. Parts 217 and 325, or (iii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), Company and Company Bank will use commercially reasonable efforts to (i) preserve its business organizations and assets intact, (ii) keep available to itself and, after the Effective Time, Buyer the present services of the current officers and employees of Company and its Subsidiaries, (iii) preserve for itself and, after the Effective Time, Buyer the goodwill of its customers, employees, lessors and others with whom business relationships exist, and (iv) continue diligent collection efforts with respect to any delinquent loans and, to the extent within its control, not allow any material increase in delinquent loans. Without limiting the generality of and in furtherance of the foregoing, from the date of this Agreement until the Effective Time, except (i) as set forth in Company Disclosure Schedule 5.01, (ii) as expressly contemplated or permitted by this Agreement or the Brazilian Standby Purchase Agreement or as required by applicable Law, or Laws, requirements or official guidance relating to capital adequacy, including but not limited to 12 C.F.R. Parts 217 and 325, or (iii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on not permit its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contested; (ii) Do or cause to be done all things reasonably necessary to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful in the conduct of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred in the ordinary course of business, nor incur any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right of payment to the indebtedness evidenced by this Debenture.Subsidiaries to:

Covenants of Company. The Except as expressly contemplated hereby, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Date, Company covenants agrees as to itself and agrees thatits Subsidiaries (except to the extent that -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER 34 Buyer shall otherwise consent in writing), so long to carry on its business in the ordinary course in substantially the same manner as previously conducted, to pay its debts and Taxes and perform other obligations when due, subject to good faith disputes over such debts, Taxes or obligations, and use commercially reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and to preserve its relationships with customers, suppliers, distributors, and others having business dealings with it. Except as expressly contemplated by this Debenture Agreement or set forth in the Company Disclosure Schedule, Company shall be outstandingnot (and shall not permit any of its Subsidiaries to), without the written consent of Buyer: (a) Accelerate, amend or change the period of exercisability of any Warrant or any outstanding Option or restricted stock granted under any Company Stock Plan or any other employee stock plan of Company or authorize cash payments in exchange for any Warrant or any Option granted under any of such plans except as contemplated by Section 1.5 of this Agreement; (b) Declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock, or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock; (c) Issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it will:to issue any such shares or other convertible securities, other than the issuance of shares of Company Common Stock pursuant to the conversion of 12% Preferred Stock and the exercise of the Warrants outstanding on the date of this Agreement; (d) Acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division, or otherwise acquire or agree to acquire any assets (other than inventory, supplies and other items, in each case, in the ordinary course of business consistent with past practice); (e) Sell, lease, license or otherwise dispose of any of its properties or assets having a value in excess of $250,000, except for sales of inventory or products, in each case, in the ordinary course of business consistent with past practice; (i) Promptly pay and discharge Increase or agree to increase the compensation (including salary, bonus, benefits or other remuneration) payable or to become payable to its officers or employees except for increases in accordance with existing contractual commitments, all lawful taxes, assessments, and governmental charges or levies imposed upon of which contracts are disclosed on the Company Disclosure Schedule (ii) grant any -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER 35 severance or upon its income and profitstermination pay to, or upon enter into or amend any employment or severance agreements with, any employees or officers, other than (x) the payment of severance or termination pay in accordance with any existing contractual commitments or the terms of any Benefit Plan and (y) subject to subparagraph (t) below, entering into employment agreements with new employees in the ordinary course of business consistent with past practice, (iii) enter into any collective bargaining agreement, (iv) establish, adopt, enter into or amend (except as may be required by law) any bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination or severance or other plan, trust, fund, policy or arrangement for the benefit of any directors, officers or employees, or (v) forgive any indebtedness of any employee to Company or any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contestedSubsidiaries; (iig) Do Amend or cause propose to be done all things reasonably necessary to preserve and keep in full force and effect amend its corporate existence, rights and franchises and comply with all laws applicable to the Companycertificate of incorporation or bylaws; (iiih) At all times reasonably maintainMake any loans to any person or entity or guarantee any debt securities of others (other than as a result of the endorsement of checks for collection and for advances for employee reimbursable expenses, preserve, protect and keep its property used or useful in each case in the conduct ordinary course of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its businessconsistent with past practice); (ivi) To the extent necessary for the operation of its businessInitiate, keep adequately insured by financially sound reputable insurerscompromise, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industryor settle any material litigation or arbitration proceeding ; (vj) At all times keep true and correct booksModify, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for amend or terminate any Company Material Contract (other than any immaterial modification or amendment to a purchase order in the inspection ordinary course of Payee business consistent with past practice), or waive, release or assign any material rights or claims, including any write-off or other compromise of any accounts receivable of Company or any of its agents; andSubsidiaries; (vik) Except Make or rescind any Tax election, settle or compromise any Material Tax liability or amend any Tax Return; (l) Change its methods of accounting as in effect at December 31, 1999 except as required by US GAAP; (m) Make or commit to make any capital expenditures that exceed the capital budget furnished by Company to Buyer by more than $250,000; (n) Enter into any new license for any intellectual property rights to or from any third party other than in the incurrence ordinary course of business consistent with past practice; (o) Revalue any of the significant assets of Company or any of its Subsidiaries, including the writing down of inventory other than in the ordinary course of business consistent with past practice; (p) Close any facility or office; -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER 36 (q) Invest funds in debt securities or other instruments maturing more than 90 days after the date of investment; (r) Fail to pay accounts payable and other obligations in the ordinary course of business in a manner consistent with Company's past practice or accelerate the payment of any indebtedness accounts receivable other than in the ordinary course of business in a manner consistent with past practice, as such practices are set forth on Schedule 5.1 (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect theretor) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and Disclosure Schedules; (s) Mortgage or pledge any refinancings of its property or replacements thereto assets or trade debt subject any such assets to any security interest, lien or other current liabilities incurred encumbrance, except liens imposed by law in respect of obligations not yet due which are owed in respect of taxes or which otherwise are owed to materialman, workmen, carriers, warehousepersons or laborers not in excess of $100,000 in the aggregate; (t) Hire any employees or retain any consultants other than non- management or non-supervisory personnel in the ordinary course of business; (u) Make any payment or other distribution to any Affiliate of Company except for normal employment compensation consistent with past practices; or (v) Take, nor incur or agree in writing or otherwise to take, any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated of the actions described in right of payment to the indebtedness evidenced by this Debentureparagraphs (a) through (u) above.

Covenants of Company. The Company covenants and agrees that, so long with Xxxxx Fargo as this Debenture shall be outstanding, it willfollows: (ia) Promptly pay and discharge all lawful taxesExcept as otherwise permitted or required by this Agreement, assessmentsfrom the date hereof until the Effective Time of the Merger, Company, and governmental charges each Company Subsidiary will: maintain its corporate existence in good standing; maintain the general character of its business and conduct its business in its ordinary and usual manner; extend credit in accordance with existing lending policies and provide Xxxxx Fargo access to its loan files (including credits extended after the date hereof), except that it shall not, without the prior written consent of Xxxxx Fargo (which shall be deemed to be waived if Xxxxx Fargo has made no response by the end of the second complete business day following the receipt (by confirmed facsimile) of the request by a Xxxxx Fargo representative designated in writing), (A) make any new loan or levies imposed modify, restructure or renew any existing loan (except pursuant to commitments made prior to the date of this Agreement) to any borrower if the amount of the resulting loan, when aggregated with all other loans or extensions of credit to such person, would be in excess of $750,000, or (B) make any extensions of credit aggregating in excess of $500,000 to a person or entity that is not a borrower as of the date hereof; maintain proper business and accounting records in accordance with generally accepted principles; maintain its properties in good repair and condition, ordinary wear and tear excepted; maintain in all material respects presently existing insurance coverage; use its best efforts to preserve its business organization intact, to keep the services of its present principal employees and to preserve its good will and the good will of its suppliers, customers and others having business relationships with it; use its best efforts to obtain any approvals or consents required to maintain existing leases and other contracts in effect following the Merger; comply in all material respects with all laws, regulations, ordinances, codes, orders, licenses and permits applicable to the properties and operations of Company and each Company Subsidiary the non-compliance with which reasonably could be expected to have a material adverse effect on Company and the Company Subsidiaries taken as a whole; and permit Xxxxx Fargo and its representatives (including KPMG) to examine its and its subsidiaries books, records and properties and to interview officers, employees and agents at all reasonable times upon reasonable prior notice when it is open for business. No such examination by Xxxxx Fargo or its representatives either before or after the date of this Agreement shall in any way affect, diminish or terminate any of the representations, warranties or covenants of Company herein expressed. (b) Except as otherwise contemplated or required by this Agreement, from the date hereof until the Effective Time of the Merger, Company and each Company Subsidiary will not (without the prior written consent of Xxxxx Fargo): amend or otherwise change its articles of incorporation or association or by-laws; issue or sell or authorize for issuance or sale, or grant any options or make other agreements with respect to the issuance or sale or conversion of, any shares of its capital stock, phantom shares or other share-equivalents, or any other of its securities, except that Company may issue shares of Company Common Stock upon the Company exercise of outstanding stock options described in Schedule 4(b); authorize or upon its income and profitsincur any long-term debt (other than deposit liabilities); mortgage, pledge or upon subject to lien or other encumbrance any of its propertyproperties, before except in the same shall become ordinary course of business; enter into any material agreement, contract or commitment in default, as well as all lawful claims excess of $25,000 except banking transactions in the ordinary course of business and in accordance with policies and procedures in effect on the date hereof; make any investments except investments made by bank subsidiaries in the ordinary course of business for labor, materials terms of up to one year and supplies which, if unpaid, might become a lien in amounts of $100,000 or charge upon such properties or any part thereof, provided, however, that less and except for "fed funds" investments made in the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof ordinary course of business (which consent requirement shall be contested deemed to be waived as to any investment to which Xxxxx Fargo has made no response by the end of the second complete business day following the receipt of the request by a Xxxxx Fargo representative designated in good faith writing); amend or terminate any Plan except as required by appropriate proceedings and law or the Company shall terms of this Agreement; make any contributions to any Plan except as required by the terms of such Plan in effect as of the date hereof; declare, set aside on its books adequate reserves aside, make or pay any cash or stock dividend or other distribution with respect to its capital stock except any dividend declared by the Board of Directors of a Company Subsidiary in accordance with applicable law and regulation; redeem, purchase or otherwise acquire, directly or indirectly, any of the capital stock of Company; increase the compensation of any officers, directors or executive employees, except pursuant to existing compensation plans, agreements and practices; sell or otherwise dispose of any shares of the capital stock of any Company Subsidiary; or sell or otherwise dispose of any of its assets or properties other than in the ordinary course of business. (c) The Board of Directors of Company will duly call, and will cause to be held on a date agreeable to Xxxxx Fargo, but not later than twenty-five (25) business days following the effective date of the Registration Statement referred to in paragraph 5(c) hereof, a meeting of its shareholders and will direct that this Agreement and the Merger Agreement be submitted to a vote at such taxmeeting. The Board of Directors of Company will (i) cause proper notice of such meeting to be given to its shareholders in compliance with the California General Corporation Law and other applicable law and regulation, assessment, charge, levy or claim so contested; and (ii) Do except to the extent that the Board of Directors of Company shall conclude in good faith, after taking into account the advice of its outside counsel, that to do so would violate its fiduciary obligations under applicable law, (A) recommend by the affirmative vote of the Board of Directors a vote in favor of approval of this Agreement and the Merger Agreement, and (B) use its best efforts to solicit from its shareholders proxies in favor thereof. (d) Company will furnish or cause to be done furnished to Xxxxx Fargo all things reasonably the information concerning Company and its subsidiaries required for inclusion in the Registration Statement referred to in paragraph 5(c) hereof, or any statement or application made by Xxxxx Fargo to any governmental body in connection with the transactions contemplated by this Agreement. Any financial statement for any fiscal year provided under this paragraph must include the audit opinion and the consent of PRICEWATERHOUSECOOPERS, LLP to use such opinion in such Registration Statement. (e) Company will take all necessary corporate and other action and use its best efforts to preserve obtain all approvals of regulatory authorities, consents and keep in full force other approvals required of Company to carry out the transactions contemplated by this Agreement and effect will cooperate with Xxxxx Fargo to obtain all such approvals and consents required of Xxxxx Fargo. (f) Company will use its corporate existence, rights and franchises and comply with all laws applicable best efforts to deliver to the Closing all opinions, certificates and other documents required to be delivered by it at the Closing. (g) Company will hold in confidence all documents and information concerning Xxxxx Fargo and its subsidiaries furnished to Company and its representatives in connection with the transactions contemplated by this Agreement and will not release or disclose such information to any other person, except as required by law and except to Company;'s outside professional advisers in connection with this Agreement, with the same undertaking from such professional advisers. If the transactions contemplated by this Agreement shall not be consummated, such confidence shall be maintained and such information shall not be used in competition with Xxxxx Fargo (except to the extent that such information can be shown to be previously known to Company, in the public domain, or later acquired by Company from other legitimate sources) and, upon request, all such documents, any copies thereof and extracts therefrom shall immediately thereafter be returned to Xxxxx Fargo. (h) Neither Company, nor any Company Subsidiary, nor any director, officer, representative or agent thereof, will, directly or indirectly, solicit, authorize the solicitation of or except to the extent that the Board of Directors of Company shall conclude in good faith, after taking into account the written advice of its outside counsel, that to fail to do so could reasonably be determined to violate its fiduciary obligations under applicable law, enter into any discussions with any corporation, partnership, person or other entity or group (other than Xxxxx Fargo) concerning any offer or possible offer (i) to purchase any shares of common stock, any option or warrant to purchase any shares of common stock, any securities convertible into any shares of such common stock, or any other equity security of Company or any Company Subsidiary, (ii) to make a tender or exchange offer for any shares of such common stock or other equity security, (iii) At all times reasonably maintainto purchase, preserve, protect and keep its property used lease or useful in otherwise acquire the conduct assets of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee Company or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred Subsidiary except in the ordinary course of business, nor incur or (iv) to merge, consolidate or otherwise combine with Company or any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right Company Subsidiary. If any corporation, partnership, person or other entity or group makes an offer or inquiry to Company or any Company Subsidiary concerning any of payment the foregoing, Company or such Company Subsidiary will promptly disclose such offer or inquiry, including the terms thereof, to Xxxxx Fargo. (i) Company shall consult with Xxxxx Fargo as to the indebtedness evidenced form and substance of any proposed press release or other proposed public disclosure of matters related to this Agreement or any of the transactions contemplated hereby. (j) Company and each Company Subsidiary will take all action necessary or required (i) to terminate or amend, if requested by Xxxxx Fargo, all qualified pension and welfare benefit plans and all non-qualified benefit plans and compensation arrangements as of the Effective Date of the Merger to facilitate the merger of such plans with Xxxxx Fargo plans without gaps in coverage for participants in the plans and without duplication of costs caused by the continuation of such plans after coverage is available under Xxxxx Fargo plans, and (ii) to submit application to the Internal Revenue Service for a favorable determination letter for each of the Plans which is subject to the qualification requirements of Section 401(a) of the Code prior to the Effective Date of the Merger. (k) [Intentionally omitted.] (l) Company shall use its best efforts to obtain and deliver at least thirty-two (32) days prior to the Effective Date of the Merger signed representations substantially in the form attached hereto as Exhibit B to Xxxxx Fargo by each executive officer, director or shareholder of Company who may reasonably be deemed an "affiliate" of Company within the meaning of such term as used in Rule 145 under the Securities Act. (m) Company shall establish such additional accruals and reserves as may be necessary to conform Company's accounting and credit loss reserve practices and methods to those of Xxxxx Fargo and Xxxxx Fargo's plans with respect to the conduct of Company's business following the Merger and to provide for the costs and expenses relating to the consummation by Company of the Merger and the other transactions contemplated by this DebentureAgreement as set forth in writing by Xxxxx Fargo; PROVIDED, HOWEVER, that (a) Company shall not be required to take such actions more than three (3) business days prior to the Closing Date or prior to the time Xxxxx Fargo agrees that all of the conditions to their obligation to close as set forth in paragraph 7 have been satisfied or waived (other than the deliveries to be made on the Closing Date) and no such adjustment shall (i) require any prior filing with any governmental agency or regulatory authority, or (ii) violate any law, rule or regulation applicable to Company; provided that in any event no accrual or reserve made by Company pursuant to this paragraph 4(m), shall constitute or be deemed to be a breach, violation of or failure to satisfy any representation, warranty, covenant, condition or other provision of this Agreement or otherwise be considered in determining whether any such breach, violation or failure to satisfy shall have occurred including without limitation any determination that the Company Financial Statements have been prepared other than in accordance with generally accepted accounting principles. (n) Company shall obtain, at its sole expense, Phase I environmental assessments for each bank facility and each non-residential OREO property. Oral reports of such environmental assessments shall be delivered to Xxxxx Fargo no later than four (4) weeks and written reports shall be delivered to Xxxxx Fargo no later than eight (8) weeks from the date of this Agreement. Company shall obtain, at its sole expense, Phase II environmental assessments for properties identified by Xxxxx Fargo on the basis of the results of such Phase I environmental assessments. Company shall obtain a survey and assessment of all potential asbestos containing material in owned or leased properties (other than OREO property) and a written report of the results shall be delivered to Xxxxx Fargo within four (4) weeks of the date of this Agreement. (o) Company shall obtain, at its sole expense, commitments for title insurance and boundary surveys for each bank facility which shall be delivered to Xxxxx Fargo no later than four (4) weeks from the date of this Agreement. (p) Company will comply with the FFIEC Requirements and will not rely on the consummation of the transactions contemplated by this Agreement to satisfy its FFIEC requirements. Company will provide Xxxxx Fargo with complete access to its Year 2000 project and remediation plan documentation and permit Xxxxx Fargo to review and investigate Company's continuing Year 2000 compliance efforts and the results thereof. (q) Company shall take such action as is necessary to terminate the Stock Option Plans as of the Effective Date of the Merger. Company shall collect in cash (and timely pay) all applicable withholding and payroll taxes with respect to such options, awards and stock appreciation rights, and shall comply with all payroll reporting requirements with respect thereto. All Options which remain unexercised and which are not Redeemed Options pursuant to the provisions of paragraph 4(q) hereof shall expire as of the Effective Time of the Merger. (r) Immediately prior to the Effective Time, Company shall redeem and shall cause its stock option committees under the Stock Option Plans to take all action necessary to redeem any Options which the option holders have elected in writing, prior to the meeting of shareholders required by paragraph 4(c) hereof, to have redeemed by the Company ("Redeemed Options") in an amount for each Redeemed Option equal to the Fair Market Value Per Share of such Redeemed Option minus the exercise price thereof as set forth in an Option holder's option agreement or option agreements. Company shall withhold (and timely pay) all applicable withholding, and payroll taxes from the Cash Surrender Amount, and shall comply with all payroll reporting requirements with respect to such payments. In addition, Company shall, and shall cause its stock option committees to, determine the "Fair Market Value" (as defined in the Stock Option Plans) of a Redeemed Option to be an amount equal to the Fair Market Value Per Share as defined in this Agreement.

Covenants of Company. The a. At the time of Closing, the Company hereby covenants and agrees thatto convert the 250,000 shares of Company Preferred Stock acquired by BigHub from the Preferred Shareholders hereunder into 668,449 shares of Company Common Stock. b. Except as may be consented to by BigHub, so long as this Debenture which consent shall not be outstandingunreasonably withheld, it willfollowing the Closing, the Company: (i) Promptly pay and discharge all lawful taxes, assessmentsshall, and governmental charges or levies imposed upon the Company or upon its income and profits, or upon any shall cause each of its propertysubsidiaries to, before the same shall become in default, as well as all lawful claims for labor, materials conduct its operations according to their ordinary and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contestedusual course of business; (ii) Do shall notify BigHub of any emergency or cause to other change in the normal course of its or its subsidiaries' respective businesses or in the operation of its or its subsidiaries' respective properties and of any complaints, investigations or hearings (or communications indicating that the same may be done all things reasonably necessary to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Companycontemplated) of any governmental body or authority; (iii) At all times reasonably maintainshall not authorize or pay any dividends on or make any distribution with respect to its outstanding shares of stock other than the payment of dividends, preserve, protect and keep its property used or useful in the conduct form of its business in good repair95,588 shares of Company Common Stock, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct holders of its businessthe Company Preferred Stock; (iv) To the extent necessary for the operation shall not, and shall not permit any of its businesssubsidiaries to, keep adequately insured by financially sound reputable insurersauthorize, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct bookspropose or announce an intention to authorize or propose, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation enter into an agreement with respect theretoto, (x) secured by a lienany merger, mortgage consolidation or guarantee on the property business combination, (whether real y) any acquisition of assets or personal) securities or equipment any disposition of the Company and any refinancings assets or replacements thereto or trade debt or other current liabilities incurred securities not in the ordinary course of business, nor incur or (z) any indebtedness whatsoever which indebtedness does release or relinquishment of any material contract rights; (v) shall not, and shall not expressly provide that it is wholly subordinated permit any of its subsidiaries to, except in right the ordinary course of payment business in connection with employee incentive and benefit plans, programs or arrangements in existence on the date hereof, or as contemplated herein, purchase, exchange, convert or redeem any shares of its stock; and (vi) shall not, and shall not permit any of its subsidiaries to enter into any material agreement with aggregate consideration of $100,000 per year. c. The Company shall, as soon as practicable, upon the earlier of and with the proceeds from (i) a successful capital raising transaction contemplated by Section 8 hereof or (ii) the sale of INI, cause the --------- redemption of the Series B Convertible Preferred Stock. d. The Company shall take all necessary action to cause Xxxxx Xxxxx and Xxxx Xxxxxx to be appointed to the indebtedness evidenced Board of Directors of the Company as of the Closing Date and to serve until the next annual election of directors of the Company. In connection with such election, the Company shall take all necessary action to include Xxxxx Xxxxx and Xxxx Xxxxxx as nominees for the Board of Directors of the Company recommended by this Debenturesuch Board of Directors of Company for election by Company's stockholders to such Board of Directors.

Covenants of Company. The During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, Company covenants agrees, as to itself and agrees thatits Subsidiaries, except to the extent that Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld or delayed), and except as required by this Agreement or as set forth in Section 5.01 of the Company Disclosure Schedule, 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 (subject to good faith disputes over such obligations), and, to the extent consistent with such business, use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers, distributors, and others having business dealings with it, except in each case where the failure to do so long would not have a Company Material Adverse Effect. Except as required by this Debenture Agreement or as set forth in Section ------- 5.01 of the Company Disclosure Schedule, Company shall not (and shall not permit --------------------------------------- its Subsidiaries to), without the written consent of Parent (which consent shall not be outstandingunreasonably withheld or delayed): (a) accelerate, amend or change the period of exercisability of options or restricted stock granted under any employee stock plan of Company or any of its Subsidiaries or authorize cash payments in exchange for any options granted under any of such plans except as required by the terms of such plans or any related agreements in effect as of the date of this Agreement; (b) other than distributions from a Subsidiary of Company to Company, and except for the issuance of shares pursuant to the 100% stock dividend to be distributed by Company on or about March 13, 2000, declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any of its capital stock (other than dividends on Company Common Stock payable solely in shares of Company Common Stock), or split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or purchase or otherwise 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 Company or any of its Subsidiaries; (c) transfer or license to any person or entity or otherwise extend, amend or modify in any material respect any rights to the Company Intellectual Property Rights other than on a non-exclusive basis in the ordinary course of business consistent with past practices; (d) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of its capital stock or securities convertible into shares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it will: to issue any such shares or other convertible securities, other than (i) Promptly pay the grant of options to purchase up to six million (6,000,000) shares (net of cancellations and discharge all lawful taxesgiving effect to the 100% stock dividend to be distributed by Company on or about March 13, assessments2000), in the aggregate consistent with past practices to existing or newly hired employees (which options will not be entitled to accelerated vesting as a result of the Merger), or (ii) the issuance of shares of Company Common Stock pursuant to the exercise of options outstanding on the date of this Agreement or granted in accordance with this Agreement, (iii) the issuance of shares of Company Common Stock to participants in the Company ESPP in accordance with the terms thereof, (iv) the issuance of rights pursuant to the Company Rights Plan in connection with the issuance of shares of Company Common Stock, and governmental charges (v) the issuance of shares pursuant to the 100% stock dividend to be distributed by Company on or levies imposed upon the Company or upon its income and profitsabout March 13, or upon any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that the Company shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contested2000; (iie) Do acquire or cause agree to be done all things reasonably necessary acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division, or otherwise acquire or agree to preserve acquire any assets other than inventory and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful other assets in the conduct ordinary course of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (ivf) To the extent necessary for the operation of its businesssell, keep adequately insured by financially sound reputable insurerslease, all property license or otherwise dispose of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct booksmaterial property or asset or a material amount of properties or assets, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice except for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred transactions in the ordinary course of business, nor or enter into any agreement, option or other arrangements (including any joint venture) involving the exclusive licensing of Company's name or system outside of the ordinary course of business or inconsistent with past practice; (g) (i) increase or agree to increase the compensation payable or to become payable to its officers or employees, except for increases in compensation of employees (other than officers) in accordance with past practices, (ii) grant any additional severance or termination pay to, or enter into any employment or severance agreements with, any employee or officer, (iii) enter into any collective bargaining agreement (other than as required by law or extensions to existing agreements in the ordinary course of business), (iv) establish, adopt, enter into or amend in any material respect 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 director, officer or employee, other than, with respect to employees who are not officers, in the ordinary course of business, or (v) take any action (other than action required or contemplated by this Agreement) that causes (or which together with the consummation of the Merger will cause) the acceleration of any options; (h) amend or propose to amend its Certificate of Incorporation or Bylaws, except as contemplated by this Agreement; (i) enter into or amend in any material respect any OEM agreement or any other agreements pursuant to which any third party is granted exclusive marketing, manufacturing or other rights with respect to any material Company product, process or technology; (j) amend or prematurely terminate any material contract, agreement or license to which it is a party except in the ordinary course of business; (k) waive or release any material right or claim, except in the ordinary course of business; (l) initiate any material litigation or arbitration proceeding; (m) incur any indebtedness whatsoever in excess of five million dollars ($5,000,000) for borrowed money other than in the ordinary course of business; (n) make or agree to make any new capital expenditure or expenditures, or enter into any agreement or agreements providing for capital expenditures which, individually, are in excess of one million dollars ($1,000,000) or, in the aggregate, are in excess of ten million dollars ($10,000,000) (except that Company and its Subsidiaries may make capital expenditures in the amounts contemplated by the budget previously delivered by Company to Parent); (o) make any material Tax election or settle or compromise any material Tax liability; (p) pay, discharge, settle or satisfy any material disputed claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than in the ordinary course of business; (q) amend or propose to amend the Company Rights Plan in any manner which indebtedness would impede the consummation of the Merger or which is otherwise adverse to the interests of Parent, other than any amendment in connection with a termination of this Agreement pursuant to Section ------- 8.01(h); or ------- (r) agree in writing or otherwise to take any of the actions described in Section 5.01(a) through Section 5.01(q). --------------- --------------- Notwithstanding anything to the contrary in this Section 5.01, if Company makes ------------ a request in writing to Parent (delivered in accordance with Section 9.02) ------------ seeking Parent's consent to any equity-based customer transaction or other business partnership or alliance that would otherwise be prohibited by this Section 5.01, and describing the material terms of such proposed transaction, ------------ partnership, or alliance, Parent shall respond to such request within ten (10) days after such request is deemed given pursuant to Section 9.02. If Parent ------------ does not expressly provide that it object in writing to such request within ten (10) days after such request is wholly subordinated deemed given pursuant to Section 9.02, Parent shall be deemed to have consented to such request, on ------------ the terms substantially as described in right of payment to the indebtedness evidenced by this Debenturesuch request.

Covenants of Company. The Except as set forth in Section 4.1 of the Company Disclosure Schedule, the Company covenants and agrees that, so long during the period from the date hereof to the earlier of the termination of this Agreement in accordance with its terms and the Effective Time (except as otherwise specifically contemplated by the terms of this Debenture Agreement), unless Parent shall otherwise consent in writing, (i) the businesses of the Company and its Subsidiaries shall be outstandingconducted, it willin all material respects, in the ordinary course of business and in a manner consistent with past practice and, in all material respects, in compliance with applicable laws, including without limitation the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act, the Exchange Act or the Xxxxxxxx-Xxxxx Act; and (ii) the Company shall use its reasonable best efforts consistent with the foregoing to preserve substantially intact the business organization of the Company and its Subsidiaries, to keep available the services of the present officers and key employees of the Company and its Subsidiaries and to preserve, in all material respects, the present relationships of the Company and its Subsidiaries with Clients and other persons with which the Company or any of its Subsidiaries has significant business relations. Without limiting the generality of the foregoing, neither the Company nor any of its Subsidiaries shall (except as set forth in Section 4.1 of the Company Disclosure Schedule and except as otherwise specifically contemplated by the terms of this Agreement), between the date of this Agreement and the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, directly or indirectly do, any of the following without the prior written consent of Parent: (a) make or commit to make any capital expenditures, other than (i) Promptly pay expenditures for routine or emergency maintenance and discharge repair and (ii) expenditures that do not exceed $250,000 individually or $10,000,000 in the aggregate for all lawful taxesexpenditures made pursuant to this clause (ii), assessments, and governmental charges or levies imposed upon the Company or upon its income and profits, or upon provided that Parent's prior written consent to any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof, provided, however, that other capital expenditures requested to be made by the Company shall not be required to pay and discharge any unreasonably withheld or delayed if such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect to any such tax, assessment, charge, levy or claim so contested; (ii) Do or cause to be done all things reasonably necessary to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful in the conduct of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations expenditures were included in the Company's industry and carry such other insurance as is usually carried 2003 capital expenditure budget provided by similar corporations in the Company's industryCompany to Parent prior to the date of this Agreement; (vb) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of incur any indebtedness for borrowed money or guarantee such indebtedness of another Person (other than the Company or a wholly owned Subsidiary of the Company) or enter into any "keep well" or other agreement to maintain the financial condition of another Person (other than the Company or a wholly owned Subsidiary of the Company) or make or modify any loans (including without limitation, the incurrence any extension of credit to any guarantee officer or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment director of the Company and or any refinancings affiliate in violation of the Xxxxxxxx-Xxxxx Act) or replacements thereto advances of borrowed money or trade debt capital contributions to, or equity investments in, any other current liabilities incurred in Person (other than the ordinary course of business, nor incur any indebtedness whatsoever which indebtedness does not expressly provide that it is Company or a wholly subordinated in right of payment to the indebtedness evidenced by this Debenture.owned 38

Covenants of Company. The During the period from the date of this Agreement and continuing until the Effective Time, Company covenants and agrees thatto act as follows, so long except as expressly contemplated by this Debenture Agreement or to the extent that Parent shall be outstanding, it willotherwise consent in writing: (a) Except in connection with the Assumed Company Options or subject to any express limitation contained herein, Company shall carry on its business in the usual, regular and ordinary course, including the payment when due of all Taxes, debts and obligations, in substantially the same manner as heretofore conducted and , without making any commitment on behalf of or which would be binding upon Parent, shall use its commercially reasonable efforts to preserve intact its present business organization and shall use its best efforts to keep available to Parent the services of its present officers and employees and preserve its relationships with present and potential customers, licensors, licensees, suppliers, service providers and others having business dealings with them, to the end that its goodwill and ongoing business shall be unimpaired at the Effective Time. (b) Company shall not and shall not propose to, directly or indirectly, (i) Promptly make, declare or pay and discharge all lawful taxes, assessments, and governmental charges any dividends or levies imposed upon the Company other distribution on or upon its income and profits, or upon in respect of any of its propertycapital stock, before (ii) split, combine or reclassify any of its capital stock or issue or authorize the same issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of Company, or (iii) except for repurchases under the terms of restricted stock awards, repurchase, redeem or otherwise acquire any shares of its capital stock, options, warrants or rights to acquire any shares of its capital stock. (c) Except for (i) the issuance of Company Common Stock upon exercise of presently outstanding Company Options disclosed on Schedule 3.2 in accordance with the terms thereof, (ii) the issuance of the Additional Company Options or Company Options in accordance with Section 5.2, and (iii) except for the conversion of any Company Preferred Stock, Company shall become not issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any shares of its capital stock of any class or securities convertible into, or rights, warrants or options to acquire, any such shares or other convertible securities, or enter into any agreement, understanding or arrangement with respect to the sale or voting of any of its capital stock. (d) Company shall not cause or permit any amendment of its Certificate of Incorporation or Bylaws. (e) Until the earlier of the Effective Time and the termination of this Agreement pursuant to Section 11.1 hereof, Company will not take (and Company will not permit any of its directors, officers, agents, Affiliates or representatives, including investment bankers, financial advisors, attorneys and accountants (collectively, Company's "Representatives") to take), directly or indirectly, any of the following actions: (i) solicit, initiate, facilitate or encourage, or furnish information with respect to Company or its subsidiaries in defaultconnection with, as well as all lawful claims for laborany inquiry, materials and supplies whichproposal or offer with respect to any merger, if unpaid, might become a lien consolidation or charge upon such properties other business combination or acquisition involving Company or any part thereofof its subsidiaries or the acquisition of all or a substantial portion of the assets of, or any securities of, Company or any of its subsidiaries, other than the Merger (an "Acquisition Proposal"); (ii) negotiate, discuss, explore or otherwise communicate or cooperate in any way with any third party with respect to any Acquisition Proposal; (iii) enter into any agreement, arrangement or understanding with respect to an Acquisition Proposal or requiring Company to abandon, terminate or refrain from consummating the transactions contemplated hereby with Parent; or (iv) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent Company or its board of directors from (a) engaging in discussions or negotiations with, or providing information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by such Person and (b) recommending such unsolicited bona fide written Acquisition Proposal to the stockholders of Company, if and only to the extent that (i) the board of directors of Company concludes in good faith (after consultation with a nationally recognized financial advisory firm) that such Acquisition Proposal is reasonably capable of being completed taking into account the financial and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal and would, if consummated, result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"), (ii) the board of directors of Company determines in good faith after consultation with outside legal counsel that such action is required for such board to comply with its fiduciary duties under applicable law and (iii) prior to providing any information or data concerning Company or its Subsidiaries to any Person in connection with an Acquisition Proposal by such Person, Company receives from such Person an executed confidentiality agreement similar to the letter agreement between Parent and Company dated as of September 5, 2000 executed in connection with their consideration of the Merger (the "Confidentiality Letter"). Company shall, and shall cause each of Company's Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any person relating to an Acquisition Proposal. Company shall, and Company shall use its best efforts to cause its Representatives to, notify Parent orally and in writing immediately upon receipt of any inquiry, offer or proposal with respect to an Acquisition Proposal, including information as to the identity of the party or offeror making such inquiry, offer or proposal and stating the terms thereof, and shall provide Parent with (i) copies of all written materials relating thereto and (ii) such other information related thereto as Parent may reasonably request, unless prohibited by an agreement entered into by Company prior to September 9, 2000. Thereafter, Company shall keep Parent timely informed of the status and any material changes in such Acquisition Proposal. Company will not terminate or amend any agreement, arrangement or understanding to which it is a party, to the extent that it governs the right of another party or such party's Affiliates or agents to use or disclose nonpublic information relating to Company, and Company will use its best efforts to enforce such agreements, arrangements and understandings. (f) Company shall not be required (a) acquire or agree to pay and discharge acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any such taxother manner, assessmentany business or any corporation, chargepartnership, levy association or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves with respect other business organization or division thereof, (b) otherwise acquire or agree to acquire any such taxassets which are material, assessment, charge, levy individually or claim so contested; (ii) Do or cause to be done all things reasonably necessary to preserve and keep in full force and effect its corporate existence, rights and franchises and comply with all laws applicable to the Company; (iii) At all times reasonably maintain, preserve, protect and keep its property used or useful in the conduct of its business in good repairaggregate, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct of its business; (iv) To the extent necessary for the operation of its business, keep adequately insured by financially sound reputable insurers, all property of a character usually insured by similar corporations in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industry; (v) At all times keep true and correct books, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee or its agents; and (vi) Except for the incurrence of any indebtedness (including without limitation, the incurrence of any guarantee or contingent payment obligation with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment of the Company and any refinancings or replacements thereto or trade debt or other current liabilities incurred except in the ordinary course of businessbusiness consistent with past practice, nor or (c) enter into any strategic alliance, joint venture, or joint development, manufacturing or marketing agreement. (g) Company shall not sell, lease, encumber, pledge or otherwise dispose of any of its assets or properties, except (a) in the ordinary course of business consistent with prior practice and in any event not in excess of $10,000 in the aggregate, and (b) for sales of inventory and licenses in the ordinary course of business consistent with prior practice. (h) Company shall not shall assume, incur or guarantee any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated in right indebtedness, enter into, extend or renew any credit agreement, line of payment credit or similar arrangement, issue or sell any debt securities or warrants or rights to purchase debt securities, enter into, extend or renew any lease, or enter into, extend or renew any indemnity agreement or agreement to maintain the indebtedness evidenced by this Debenturefinancial condition of another person or entity.

Covenants of Company. The During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, Colorado Company, Delaware Company covenants and agrees thatthe Subsidiaries shall carry on business in the ordinary course consistent with past practice. Colorado Company, so long Delaware Company and each of the Subsidiaries shall use all reasonable efforts to preserve its business organization, keep available the present services of its employees, continue to make regularly scheduled payments on all of its existing debt and to preserve for itself and Parent the goodwill of the customers of Company and the Subsidiaries and others with whom business relationships exist, including, but not limited to all Material Contracts. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Debenture Agreement, disclosed in schedules hereto, or consented to in writing by Parent, Company shall not, and shall not permit any Subsidiary to: (a) declare or pay any dividends on, or make other distributions in respect of, any of its capital stock, except for such dividends or other distributions as may be outstanding, it will:necessary to dividend or distribute Company’s excess cash; (i) Promptly pay except as contemplated by the Reorganization and discharge all lawful taxesthe Recapitalization, assessmentssplit, and governmental charges combine or levies imposed reclassify any shares of its capital stock; or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock except upon the exercise or fulfillment of rights or options issued or existing pursuant to employee benefit plans, programs or arrangements, all to the extent outstanding and in existence on the date of this Agreement, or (ii) repurchase, redeem or otherwise acquire, any shares of the capital stock of Company or upon its income and profitsany of the Subsidiaries, or upon any securities convertible into or exercisable for any shares of the capital stock of Company or any of the Subsidiaries; (c) except as contemplated by the Reorganization and the Recapitalization, issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties capital stock or any part thereofsecurities convertible into or exercisable for, providedor any rights, howeverwarrants or options to acquire, that the Company shall not be required to pay and discharge any such taxshares, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and the Company shall set aside on its books adequate reserves enter into any agreement with respect to any such tax, assessment, charge, levy or claim so contestedof the foregoing; (iid) Do or cause to be done all things reasonably necessary to preserve except as contemplated by the Reorganization and keep in full force and effect the Recapitalization, amend its corporate existence, rights and franchises and comply with all laws applicable to the CompanyCharter Documents; (iiie) At all times reasonably maintain, preserve, protect and keep its property used or useful make any capital expenditures in the conduct excess of its business in good repair, working order and condition, and from time to time make all needed and proper repairs, renewals, replacements, betterments and improvements thereto as shall be reasonably required in the conduct $25,000; (f) enter into any new line of its business; (ivg) To acquire or agree to acquire, by merging or consolidating with, or by purchasing a equity interest in or a portion of the extent necessary for the operation assets of its businessor by any other manner, keep adequately insured by financially sound reputable insurersany business or any corporation, all property of a character usually insured by similar corporations partnership, association or other business organization or division thereof, or otherwise acquire any assets other than in the Company's industry and carry such other insurance as is usually carried by similar corporations in the Company's industryordinary course of business; (vh) At all times keep true and correct bookschange its methods of accounting in effect at December 31, records and accounts. Such books and records shall be open at reasonable times and upon reasonable notice for the inspection of Payee 2006, except as required by changes in GAAP or its agents; andregulatory accounting principles as concurred to by Company’s independent auditors; (vii) Except for the incurrence except as contemplated hereby, enter into, adopt, amend, renew or terminate any Company Benefit Plan or any agreement, arrangement, plan or policy between Company or any Subsidiary and one or more of its current or former directors, officers or employees, or increase in any manner compensation or fringe benefits of any indebtedness director, officer or employee or pay any benefit not required by any plan or agreement as in effect as of the date hereof (including including, without limitation, the incurrence granting of stock options, stock appreciation rights, restricted stock, restricted stock units or performance units or shares), excluding, however, any increase in compensation or benefits for any employees in the ordinary course of business and specifically approved in writing by Parent; or enter into, modify or renew any employment, severance or other agreement with any director, officer or employee of Company or any Subsidiary or establish, adopt, enter into, or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement providing for any benefit to any director, officer or employee (whether or not legally binding); (j) incur any Indebtedness, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any guarantee other individual, corporation or contingent payment obligation other entity except in the ordinary course of business consistent with respect thereto) secured by a lien, mortgage or guarantee on the property (whether real or personal) or equipment past practices of the Company and the Subsidiaries; (k) sell, lease, encumber, assign or otherwise dispose of, or agree to sell, lease, encumber, assign or otherwise dispose of, any refinancings or replacements thereto or trade debt of its assets, properties or other current rights or agreements other than in the ordinary course of business; (l) make any Tax election, or settle or compromise any federal, state, local or foreign Tax liability or file or amend any Tax Return; (m) pay, discharge or satisfy any claim, liability or obligation other than payments in the ordinary course of business and consistent with past practices of Company and the Subsidiaries, liabilities incurred in connection with the Merger and the transactions expressly contemplated hereby, or liabilities reflected or reserved against in the Financial Statements, or subsequently incurred in the ordinary course of businessbusiness and consistent with past practices of Company and the Subsidiaries; (n) enter into or renew, nor incur amend or terminate, or give notice of a proposed renewal, amendment or termination, or make any indebtedness whatsoever which indebtedness does not expressly provide that it is wholly subordinated commitment with respect to any Material Contract, unless in right the ordinary course of payment business and consistent with past practices of Company and the Subsidiaries; (o) waive any material right, whether in equity or at law; or (p) agree to do any of the indebtedness evidenced by this Debentureforegoing.