Common use of Ordinary Conduct Clause in Contracts

Ordinary Conduct. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof to the Closing, Seller shall (i) cause the business of the Subsidiaries and their subsidiaries to be conducted in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve their relationships with customers and others with whom the Subsidiaries deal and (ii) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall do any of the following without the written consent of Purchaser (which consent will not be unreasonably withheld): (i) amend their certificate of incorporation or by-laws or similar documents; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Seller; (iii) redeem or otherwise acquire any shares of their capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiaries; (v) sell, lease or otherwise dispose of any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiaries, except in the ordinary course of business; (vi) enter into or amend any agreement, contract or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000; (vii) purchase any private label credit card portfolio involving a purchase price in excess of $10,000,000; or (viii) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. Except as set forth on Schedule 4.2 or otherwise expressly permitted by the terms of this AgreementAgreement or as Buyer shall otherwise consent to, from the date hereof to the Closing, Seller Sellers shall (i) cause the business of the Subsidiaries and their subsidiaries Purchased Business to be conducted in the ordinary course in substantially the same manner as presently conducted and shall make all use reasonable efforts consistent with past practices to preserve their Sellers’ relationships with customers employees, customers, suppliers, dealers and others with whom the Subsidiaries deal and (ii) maintain in effect all insurance they deal. In addition, except as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as set forth on Schedule 4.2 or otherwise permitted contemplated by the terms of this AgreementAgreement to the extent permitted by Law, from the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries Sellers shall not do any of the following without the written prior consent of Purchaser (which consent will not be unreasonably withheld):Buyer: (ia) establish, adopt or enter into any Employee Benefit Plan related to any Business Employee or any similar agreement or, except as required by applicable Law, amend their certificate or take any other actions, including acceleration of incorporation vesting and waiver of performance criteria, with respect to any Employee Benefit Plan or by-laws or any similar documentsagreement; (iib) increase the compensation payable or to become payable to any Business Employee, except for payments of all amounts necessary as may be required under existing agreements, other than ordinary course adjustments in response to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Sellermarket conditions; (iiic) redeem grant any severance or otherwise acquire termination pay (other than pursuant to the severance practices of Sellers as in effect on the date of this Agreement) to, or enter into any shares employment or severance agreement with, any Business Employee, either individually or as part of their capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares a class of capital stocksimilarly situated persons; (ivd) acquire by merging deviate from Sellers’ historical practices with respect to the incurrence and payment of payables or consolidating with, or by purchasing a substantial portion accrual and collection of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof receivables or otherwise acquire pay or satisfy any assets that are material, individually or Liabilities other than in the aggregate, to the Subsidiaries or their subsidiariesordinary course of business consistent with past practice; (ve) permit, allow or suffer any of its assets to become subjected to any Lien other than Permitted Liens; (f) waive any Claims related to the Purchased Assets; (g) make any change in any method of accounting or accounting practice related to the Purchased Business other than those required by GAAP; (h) sell, lease or otherwise dispose of any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesPurchased Assets, except in the ordinary course of businessbusiness consistent with past practice, whether by asset sale, merger, consolidation or otherwise; (vii) enter into amend, terminate, alter or amend waive performance under any agreement, contract or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000Assumed Contract; (viij) purchase any private label credit card portfolio involving fail to maintain the Purchased Assets in a purchase price manner consistent with past practices, ordinary wear and tear excepted; (k) fail to maintain the books of account and Records relating to the Purchased Business in excess the usual, regular and ordinary manner, in accordance with the historical accounting practices of $10,000,000Sellers; (l) fail to preserve and maintain all rights that Sellers now enjoy in and to the Transferred Intellectual Property; (m) fail to maintain in full force and effect, to the extent available at commercially reasonable rates, insurance coverage that is equivalent in all material respects to the insurance coverage currently in effect and applicable to the Purchased Business and the Purchased Assets; or (viiin) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. (a) Except as set forth on Schedule 4.2 otherwise contemplated or otherwise permitted by the terms of this AgreementTransaction Agreements, from the date hereof of this Agreement to the Closingapplicable Closing Date, unless Purchaser otherwise previously consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), Seller shall (i) cause the business of the Subsidiaries and their subsidiaries Customer Care Business to be conducted in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve their relationships with customers and others with whom the Subsidiaries deal and (ii) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall do any of the following without the written consent of Purchaser (which consent will not be unreasonably withheld): (i) amend their certificate of incorporation or by-laws or similar documents; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Seller; (iii) redeem or otherwise acquire any shares of their capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiaries; (v) sell, lease or otherwise dispose of any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiaries, except material respects in the ordinary course of business; business consistent with past practices, and in particular, Seller shall cause the Customer Care Business not to (vii) sell or dispose of, or enter into any agreement to sell or dispose of, any of the Transferred Assets (other than the sale or disposition of obsolete Transferred Assets), (ii) take any affirmative action to terminate any Transferred Contract (other than terminations as a result of breach or non-performance by the counterparty to such contract; provided that prior to taking any such affirmative action, Seller shall notify Purchaser of, and consult with Purchaser, regarding such termination), (iii) take any affirmative action to waive or amend any agreementmaterial term of any Transferred Contract or (iv) breach any term of a Transferred Contract that would give the counterparty to such contract a right of termination, contract acceleration of terms or material penalties due to such breach, except, in the case of each of clauses (i) through (iv), for such actions in the ordinary course of business for the Customer Care Business; provided that any such actions in clauses (i) through (iv) taken in the ordinary course of business that affect Excluded Assets as well as the Customer Care Business are not permitted if such actions are material and disproportionately detrimental to the Customer Care Business. Notwithstanding the foregoing, Purchaser acknowledges and agrees that Seller (A) shall cause each Transferred Subsidiary to distribute or otherwise Transfer its cash and cash equivalents and other arrangement assets not constituting Transferred Assets to Seller or an Affiliate of Seller, (B) may Transfer any Transferred Asset to newly formed Subsidiaries of Seller to effect the Transfer of such Transferred Assets to Purchaser and (C) may transfer the employment of those employees of Seller or series its Subsidiaries in any Covered Territory who fulfill the criteria set forth in the Employee Identification Guidelines to the applicable Transferred Subsidiary and the employment of related agreements, contracts employees who do not fulfill the criteria set forth in the Employee Identification Guidelines from a Transferred Subsidiary to Seller or its other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as in each case, on or prior to the case may beapplicable Closing Date, to the extent permitted by notice of not more than 60 days for an aggregate cost of less than $1,000,000;Applicable Law. (viib) purchase any private label credit card portfolio involving a purchase price in excess Without limiting the foregoing, from the date of $10,000,000; or (viii) agreethis Agreement to the applicable Closing Date, whether unless Purchaser otherwise previously consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), Seller shall not, and shall cause the Customer Care Business not to, (i) enter into, adopt, amend or terminate any material Seller Benefit Plan, material Required Benefit Plan, material Seller Benefit Agreement, material Required Benefit Agreement or material Employee Representative Agreement or (ii) increase in any manner the compensation or benefits of, or pay or otherwise grant any material benefit (including any equity or equity-based award) to, any Covered Employee, in each of clauses (i) and (ii), except (A) to the extent required by Applicable Law, (B) as may be required under the terms and conditions of any Seller Benefit Plan, Required Benefit Plan, Seller Benefit Agreement, Required Benefit Agreement or Employee Representative Agreement, as in effect on the date hereof, (C) as effected in the ordinary course of business consistent with past practice (which, for the avoidance of doubt, shall not include broad-based equity or equity-based awards similar to the Centennial restricted stock unit grant in 2011), (D) as expressly provided for in this Agreement or the Employee Matters Agreement, (E) as would relate to a substantial number of similarly situated employees of Seller or its Subsidiaries generally within the applicable Covered Territory or (F) for which Seller or its Subsidiaries shall be solely liable and which shall not affect in any way the obligations of Purchaser under this Agreement or the Employee Matters Agreement or, following the applicable Closing Date, result in any other obligations of Purchaser (whether legal, contractual or otherwise, ) in addition to do any of the foregoingthose Purchaser would otherwise have had but for this clause (F).

Ordinary Conduct. (a) Except as required by Applicable Law or as set forth on Schedule 4.2 Section 5.02 of the Seller Disclosure Schedule, and except as consented to in writing by Purchaser (which consent shall not be unreasonably withheld, conditioned, or delayed) or otherwise permitted contemplated by the terms of this AgreementAgreement or of any Other Transaction Document, from the date hereof to until the Closing, Seller shall, and shall (i) cause the business Selling Affiliates to, cause the operation of the Subsidiaries and their subsidiaries Xxxxx Xxxxx Facility to be conducted in all material respects in the ordinary course in substantially the same manner as presently conducted currently conducted, and shall, and shall make all cause the Selling Affiliates to, use reasonable best efforts consistent with past practices to preserve their the relationships with customers customers, suppliers, distributors and others with whom the Subsidiaries deal and Seller or Selling Affiliate, for the operation of the Xxxxx Xxxxx Facility, has a material business relationship. (iib) maintain in effect all insurance Except as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except required by Applicable Law or as set forth on Section 5.02 of the Seller Disclosure Schedule 4.2 or otherwise permitted contemplated by the terms of this Agreement, from the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries Seller shall not, and shall not permit a Selling Affiliate to, do any of the following in connection with the operation of the Xxxxx Xxxxx Facility without the prior written consent of Purchaser (which consent will shall not be unreasonably withheld, conditioned or delayed): (i) amend their certificate of incorporation or by-laws or similar documents; (ii) except for payments of all amounts necessary grant to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Seller; (iii) redeem or otherwise acquire any shares of their capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) acquire by merging or consolidating with, or by purchasing a substantial portion employee of the assets of, Xxxxx Xxxxx Facility any increase in compensation or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiaries; (v) sell, lease or otherwise dispose of any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesbenefits, except in the ordinary course of businessbusiness consistent with past practice or as may be required under existing agreements or Applicable Law and except for any increases for which Seller or a Selling Affiliate shall be solely obligated; (ii) terminate (other than for cause) any employee of the Xxxxx Xxxxx Facility other than in the ordinary course of business consistent with past practice and other than as contemplated by Article IX hereof; (iii) enter into any new employment agreements relating to the operation of the Xxxxx Xxxxx Facility, provided that (A) Seller may, subject to clause (B), (1) hire to fill positions that are vacant as set forth on Section 9.01 of the Seller Disclosure Schedule and (2) hire to fill any position that becomes vacant on or after the date hereof if Seller reasonably determines that filling such position is reasonably necessary for the operation of the Xxxxx Xxxxx Facility; (B) Purchaser’s written approval shall be required before entering into any employment agreement having an individual value in excess of [ * ], which approval shall not be unreasonably withheld; and (C) Seller shall provide prompt notice to Purchaser of any employees hired in connection with the operation of the Xxxxx Xxxxx Facility on or after the date hereof; (iv) enter into any transaction relating to the operation of the Xxxxx Xxxxx Facility or the Acquired Assets with or for the benefit of any other Affiliate of Seller other than sales of goods or services in the ordinary course of business consistent with past practice; (v) permit, allow or suffer any Acquired Asset to become subjected to any Lien, other than a Permitted Lien, which would have been required to be set forth on Section 4.03, Section 4.04 or Section 4.05 of the Seller Disclosure Schedule if existing on the date of this Agreement; [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. (vi) enter into sell, lease, otherwise dispose of, or amend remove from the Xxxxx Xxxxx Facility any agreement, contract or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person Acquired Assets with a value in excess of $1,000,000 or is not terminable by [ * ], except for sales of raw materials, work-in-process, supplies, parts, spare parts and other inventories in the Subsidiaries, as the case may be, by notice ordinary course of not more than 60 days for an aggregate cost of less than $1,000,000business consistent with past practice; (vii) purchase fail to maintain the Xxxxx Xxxxx Facility, the Transferred Personal Property or the Transferred Software in all material respects in substantially the same working order and condition as of the date of this Agreement (ordinary wear and tear excepted); (viii) fail to perform or comply in all material respects with all of its obligations under the Transferred Contracts or the Transferred Permits, or enter into, assume, modify or amend in any private label credit card portfolio involving material respect or terminate or waive any Transferred Contract or Transferred Permit or other contract or permit that would be a purchase price Transferred Contract or Transferred Permit, as applicable, if entered into and that would restrict or otherwise impair the use and value of any Acquired Asset, or modify or terminate any material right thereunder, except for renewals, extensions or other modifications or amendments in excess the ordinary course of $10,000,000business consistent with past practice; (ix) allow to lapse, fail to maintain or preserve, or fail to make any applications for renewal as and when required, of any Transferred Permit necessary for the operation of the Xxxxx Xxxxx Facility or the ownership and use of the Acquired Assets; (x) fail to pay when due the debts, Taxes and other obligations related to the operation of the Xxxxx Xxxxx Facility; (xi) fail to comply in all material respects with all Applicable Laws related to the operation of the Xxxxx Xxxxx Facility or the ownership and use of the Acquired Assets; (xii) commence, settle or agree to settle any suit, action, proceeding or investigation relating to the operation of the Xxxxx Xxxxx Facility or the Acquired Assets the liability in respect of which would be an Assumed Liability or would restrict the operation of the Xxxxx Xxxxx Facility in the manner currently conducted, or the Acquired Assets in any material respect after the Closing Date; or (viiixiii) agree, whether in writing or otherwise, enter into any Contract to do any of the foregoing. (c) Notwithstanding anything to the contrary in this Section 5.02 the parties hereto acknowledge and agree that nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct Seller’s operations (including for purposes of Applicable Law) prior to Closing. Prior to Closing, Seller shall exercise, consistent with the terms and conditions hereof, complete control and supervision over its operations.

Ordinary Conduct. Except as contemplated by this Agreement or as set forth on in Schedule 4.2 or otherwise permitted by the terms of this Agreement6.2, from the date hereof to the Closing, Seller shall (i) agrees to cause the business of the Subsidiaries and their subsidiaries Business to be conducted in the ordinary course in substantially the same manner as presently conducted and shall will make all reasonable efforts efforts, consistent with past practices practices, to preserve their relationships with customers employees, customers, suppliers and others with whom the Subsidiaries deal and (ii) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insuranceBusiness deals. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall do Seller will not take any of the following actions without the prior written consent of Purchaser (Buyer, which consent will not be unreasonably withheld):withheld or delayed: (i) amend their certificate transfer any person identified on Schedule 9.1 to another business of incorporation Seller (other than as required by Law or by-laws by the terms of any collective bargaining agreement) or similar documentstransfer any employee of another Seller business to the Business, except as may be legally required; (ii) except in the ordinary course of business, or as required to comply with applicable law enter into, adopt, amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for payments the benefit or welfare of all amounts necessary to satisfy Section 7.2(iv) hereofany Business Employee or (except, declare in the case of employees who are not officers, for normal compensation increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense), increase in any manner the compensation or benefits of any Business Employee or pay any dividend benefit to any Business Employee not required by any plan or make any other distribution to their stockholders whether arrangement as in effect as of the date hereof (including, without limitation, the granting of stock options, restricted stock, stock appreciation rights or not upon or in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Sellerperformance units); (iii) redeem subject to any Lien, other than Permitted Liens, any of the material assets (whether tangible or otherwise acquire any shares intangible) of their capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stockthe Business; (iv) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that are materialor sell, individually or in the aggregateassign, to the Subsidiaries or their subsidiaries; (v) selltransfer, convey, lease or otherwise dispose of any of their the assets that are material(except, individually or in each case, for fair consideration in the aggregateordinary course of business consistent with past practice or pursuant to existing contractual obligations) of the Seller, relating to the Subsidiaries Business; (v) enter into any commitment for capital expenditures relating to the Business not contemplated by the capital expenditure budget of Seller heretofore provided to the Buyer; 32 (vi) modify, amend or their subsidiariesterminate any of its material Contracts or waive, release or assign any material rights or claims, except in the ordinary course of business and consistent with past practice; (vii) lease, license, mortgage, pledge, or encumber any assets other than in the ordinary and usual course of business and consistent with the past practice or transfer, sell or dispose of any assets other than in the ordinary and usual course of business and consistent with past practice; (viii) other than in the ordinary course of business, terminate, modify, amend or waive compliance with any material provision of, any of the Contracts, or fail to take any reasonable action necessary to preserve the benefits of any Contract to the Business; (ix) acquire, purchase or otherwise obtain any additional assets or provisions, whether inventory, labor or otherwise, in advance of current Contract requirements; (x) pay, repurchase, discharge or satisfy any of its claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction thereof in the ordinary course of business and consistent with past practice; (xi) make any Tax election other than in ordinary course of business and consistent with past practice or compromise any Tax liability; (xii) transfer or license to any Person, other than Buyer, or otherwise extend, amend or modify in any material respect, any rights to any Assigned Intellectual Property or Exclusive Intellectual Property (as those terms are defined in the Intellectual Property Agreement), or enter into grants to future patent rights or other intellectual property, other than non-exclusive licenses in the ordinary course of business and consistent with past practices, with respect to the Assigned Intellectual Property and Exclusive Intellectual Property, or disclose any Assigned Intellectual Property or Exclusive Intellectual Property, except pursuant to confidentiality agreements consistent with past practices; (xiii) enter into, modify or terminate any labor or collective bargaining agreement relating to the Business or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization relating to Business Employees, except in the ordinary course of business; (vixiv) enter into any transaction or amend make or enter into any agreement, contract Contract relating to the Business which by reason of its size or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or otherwise is not terminable by in the Subsidiaries, as the case may be, by notice ordinary course of not more than 60 days for an aggregate cost of less than $1,000,000business; (viixv) purchase with respect to the Business, authorize, propose, enter into or agree to enter into any private label credit card portfolio involving acquisition of a purchase price material amount of assets, any disposition of a material amount of assets or any release or relinquishment of any material contract rights not in excess the ordinary course of $10,000,000business; or (viiixvi) agreetake, whether or agree in writing or otherwiseotherwise to take, to do any of the foregoingactions described above in this Section 6.2.

Ordinary Conduct. Except as otherwise contemplated or permitted by Section 7.03 or the Transaction Agreements or set forth on Schedule 4.2 or otherwise permitted by in Section 7.02 of the terms of this AgreementSeller Disclosure Letter, from the date hereof of this Agreement to the Closingapplicable Closing Date for each Country Unit, unless Purchaser otherwise consents (such consent not to be unreasonably withheld or delayed), Seller shall (i) cause the business of the Subsidiaries and their subsidiaries Business conducted by such Country Unit to be conducted in all material respects in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve their the relationships of such Country Unit with its customers, suppliers, employees and others having relationships with customers and others with whom such Country Unit. In addition, during such period, insofar as the Subsidiaries deal and (ii) maintain in effect all insurance Business conducted by such Country Unit is concerned, except as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as set forth on Schedule 4.2 otherwise contemplated or otherwise permitted by the terms of this Agreement, from the date hereof until the Closing, neither Transaction Agreements or set forth in Section 7.02 of the Subsidiaries or their subsidiaries shall do any of the following without the written consent of Seller Disclosure Letter, unless Purchaser otherwise consents (which consent will shall not be unreasonably withheld):), Seller shall not, and shall not permit any of its Subsidiaries to: (i) amend their certificate issue, sell or deliver any shares of incorporation capital stock of any class of a Transferred Subsidiary included in such Country Unit or by-laws any option, warrant, convertible security or similar documentsother right of any kind to acquire any shares of such capital stock; (ii) adopt or amend in any material respect any Seller Benefit Plan to the extent applicable to Covered Employees, except for payments of all amounts (A) as may be required by applicable Law (including any amendments required to be adopted prior to the applicable Closing Date to the extent necessary to satisfy reflect the requirements of Section 7.2(iv409A of the Code) hereofor required under existing agreements, declare (B) as effected in the ordinary course of business and consistent with past practice, (C) as would relate to a substantial number of other similarly situated employees of the Selling Companies in any country or pay (D) for any dividend changes for which the Selling Companies will be solely liable, provided in each case that no such adoption or make any other distribution amendment materially increases the cost to their stockholders whether Purchaser or not upon or in respect its Affiliates of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of SellerAssumed Benefit Plan; (iii) redeem grant to any Covered Employee any increase in compensation or otherwise acquire benefits, or enter into, adopt or amend any shares employment agreement or other agreement that may increase the obligations to any Covered Employee, including upon termination of their capital stock employment, in each case except (A) as may be required under existing agreements, (B) as effected in the ordinary course of business and consistent with past practice, (C) as would relate to a substantial number of other similarly situated employees of the Selling Companies in any country, (D) to the extent required by applicable Law, (E) in the event that, during such period, such employee receives a promotion based on job performance or issue any capital stock workplace requirements, (F) with respect to newly hired Covered Employees or any option, warrant or right relating thereto or any securities convertible into or exchangeable (G) for any shares such increases for which the Selling Companies will be solely liable; provided that no such increase in compensation or benefits or other obligations materially increases the cost to Purchaser and its Affiliates of capital stocksuch compensation, benefits and obligations, in the aggregate; (iv) transfer employment of any person engaged primarily in the Business to any other business of Seller and its Affiliates or transfer the employment of any person engaged primarily in the business of Seller and its Affiliates (other than the Business) to the Business, in each case, other than transfers in the ordinary course of business consistent with past practice of employees not described in Section 7.02(iv)(1) of the Seller Disclosure Letter; provided that the foregoing provisions shall not be construed as a restriction on the ability to transfer employment of the employees listed in Section 7.02(iv)(2) of the Seller Disclosure Letter or to change the entity that employs an employee (so long as such change does not result in a change in such employee’s engagement in the Business); (v) subject any of the material Acquired Assets or Transferred Subsidiaries’ Equity Interests to any Lien other than Permitted Liens; (vi) waive any claims or rights of substantial value relating to the Business conducted by such Country Unit (other than pursuant to Section 10.05) except in the ordinary course of business, consistent with past practice; (vii) acquire or agree to acquire (whether by merging merger, consolidation, purchase of capital stock or consolidating with, or by purchasing of a substantial portion of the assets of, or by any other manner, otherwise) any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that are which is material, individually or in the aggregate, to the Subsidiaries or their subsidiariesBusiness if a substantial portion of the assets of such business would constitute Acquired Assets; (vviii) sell, lease lease, abandon, license, transfer or otherwise dispose of any of their the material Acquired Assets (including any material Transferred Intellectual Property or Transferred Technology) or material assets of any of the Transferred Subsidiaries outside the ordinary course of business, consistent with past practice; (ix) with respect to any Transferred Subsidiary, make or change any Tax election, amend any Tax Return or settle or compromise any Tax audit or controversy that are materialcould have an adverse effect (other than an immaterial one) on Purchaser, individually any Transferred Subsidiary or any Affiliate thereof after the applicable Closing (other than the filing of Tax Returns in the aggregateordinary course of business, consistent with past practice unless an inconsistency is required by applicable Tax laws); (x) make outside of the ordinary course of business consistent with past practice any loans, advances or capital contributions to, or investment in, any other person (other than any Transferred Subsidiary) to the Subsidiaries extent such loan, advance or their subsidiariescapital contribution is made by a Transferred Subsidiary or would constitute Acquired Assets; (xi) materially adversely change any rights, coverage or obligations of the Business and the Acquired Assets under insurance policies covering the Business in a manner inconsistent with any changes in rights, coverage or obligations made by Seller with respect to its businesses (other than the Business); (xii) settle any legal proceeding where the terms or impact of such settlement would impose any material non-monetary obligation on the Business after the Initial Closing Date or include an admission of liability material to the Business; (xiii) amend the organizational documents of the Transferred Subsidiaries; (xiv) except in the ordinary course of business, enter into, materially modify, renew, extend or terminate any Material Contract or enter into any Contract that would have been a Material Contract if such Contract existed on the date of this Agreement; (vixv) enter into engage in any material transaction with a Selling Company or amend any agreementTransferred Subsidiary outside the ordinary course of business, contract or other arrangement (or series consistent with past practice, including, without limitation, with respect to the collection of related agreementsintercompany receivables and the payment of intercompany payables, contracts or other arrangements) except as contemplated by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000Section 10.05; (viixvi) purchase incur any private label credit card portfolio involving a purchase price in excess of $10,000,000indebtedness for borrowed money (other than capital leases), except for any indebtedness that is by its terms repayable at or prior to the applicable Closing; or (viiixvii) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof to the Closing, Seller and the Subsidiaries shall (i) cause the business of the Subsidiaries and their subsidiaries Business to be conducted in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve their relationships with customers and others with whom the Subsidiaries deal Seller or either Subsidiary deals, and (ii) maintain in effect all insurance relating to the Business as to which the Subsidiaries and their subsidiaries are beneficiariesSeller or either Subsidiary is a beneficiary, including any directors and officer officers insurance. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof until the Closing, neither of Seller (with respect to the Subsidiaries or their subsidiaries Business) nor either Subsidiary shall do any of the following without the written consent of Purchaser (which consent will not be unreasonably withheld): (i) amend their certificate of incorporation or by-laws or similar documents; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Seller; (iii) redeem or otherwise acquire any shares of their capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiaries; (v) sell, lease or otherwise dispose of any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiaries, except in the ordinary course of business; (via) enter into or amend any agreement, contract or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable (i) as to any person service contract with a customer, does not provide for a xxxx-up of at least one cent over the applicable incremental cost per transaction, (ii) has annualized anticipated expenses to the Subsidiaries in excess of $1,000,000 or 100,000, (iii) is not terminable by Seller or the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000100,000, or (iv) is otherwise not in the ordinary course of business and consistent with past practices of the Business; (viib) purchase sell any private label credit card portfolio involving of the Shares or any other shares of capital stock of either Subsidiary; (c) terminate, breach, modify or amend any Contract listed on Schedule 4.2(c) to the extent such would have an adverse effect on the Business; (d) mortgage or otherwise subject to any Encumbrance any assets or interests of the Business, other than in the ordinary course of business and consistent with past practice provided such Encumbrance will be released on or prior to Closing; (e) enter into any Contract that contains any provision that, solely as a purchase price result of the consummation of the transactions contemplated by this Agreement, would (assuming that the other party's consent or approval is not obtained, to the extent required) result in excess any penalty, additional payments or forfeiture that would be payable or sufferable by a Subsidiary at or after the Closing Date; (f) solicit or induce any Employee not to become a Hired Employee; (g) hold in the Subsidiaries any assets or liabilities other than those related to the Business or operate any business in the Subsidiaries other than the Business; (h) take any action that would, or could reasonably be expected to, result in (i) any of $10,000,000the representations and warranties of Seller or either Subsidiary set forth in this Agreement that are qualified as to materially becoming untrue, (ii) any of such representations and warranties of Seller or either Subsidiary that are not so qualified becoming untrue in any material respect, or (iii) any of the conditions set forth in Article VIII not being satisfied; or (viiii) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. Except as contemplated by this Agreement or as ----------------- set forth on in Schedule 4.2 or otherwise permitted by the terms of this Agreement6.2, from the date hereof to the Closing, Seller shall (i) agrees to cause the business of the Subsidiaries and their subsidiaries Business to be conducted in the ordinary course in substantially the same manner as presently conducted and shall will make all reasonable efforts efforts, consistent with past practices practices, to preserve their relationships with customers employees, customers, suppliers and others with whom the Subsidiaries deal and (ii) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insuranceBusiness deals. Except as contemplated by this Agreement or as set forth on in Schedule 4.2 or otherwise permitted by the terms of this Agreement6.2, from the date hereof until the ClosingSeller will not, neither of the Subsidiaries or their subsidiaries shall do any of the following without the prior written consent of Purchaser (Buyer, which consent will not be unreasonably withheld):withheld or delayed, (i) take any action which would cause the representations and warranties of Seller herein to be untrue in any material respect or (ii) transfer any employee of the Business to another business of Seller or transfer any employee of another Seller business to the Business. Seller will provide Buyer with interim monthly financial statements of the Business and other management reports as and when they are available. Without limiting the generality of the foregoing, Seller shall not, except as specifically contemplated by this Agreement: (a) enter into, extend, materially modify, terminate or renew any Contract or Lease, except in the ordinary course of business; (b) sell, assign, transfer, convey, lease, mortgage, pledge or otherwise dispose of or encumber any material Assets, or any interests therein, except in the ordinary course of business; (i) amend their certificate except as otherwise required by law, take any action with respect to the grant of incorporation any bonus, severance, continuation or by-laws termination pay (otherwise than pursuant to policies or similar documents;agreements of Seller in effect on the date hereof) or with respect to any increase of benefits payable under its severance or termination pay policies or agreements in effect on the date hereof or increase in any material respect the compensation or fringe benefits of any employee or pay any benefits not required by any existing Employee Benefit Plan or Employee Benefit Arrangement, in each case other than in the ordinary course of business, consistent with past practice. (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or change in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness key management structure of Seller, including, without limitation, the hiring of additional officers or the termination of existing officers other than in the ordinary course of business; (iii) redeem except in the ordinary course of business, adopt, enter into or otherwise acquire amend any shares of their capital stock Employee Benefit Plan or issue Employee Benefit Arrangement (including, without limitation, any capital stock collective bargaining or employment agreement), or any optiontrust, warrant fund or right relating thereto other arrangement for the benefit or welfare of any securities convertible into or exchangeable for any shares of capital stockemployee; (ivd) acquire by merging merger or consolidating consolidation with, or by purchasing a substantial portion merge or consolidate with, or purchase substantially all of the assets of, or by otherwise acquire any other manner, any material assets or business or of any corporation, partnership, association or other business organization or division thereof if the assets or otherwise acquire any assets that are material, individually or business so acquired would be included in the aggregate, to the Subsidiaries or their subsidiariesBusiness; (ve) sell, lease make any capital expenditure or otherwise dispose of enter into any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiariescommitment for capital expenditures, except in accordance with the capital expenditures budget heretofore delivered to Buyer; (f) fail to maintain the Assets in substantially their current state of repair, excepting normal wear and tear, and replace inoperable, worn-out or obsolete or destroyed Assets, in each case in accordance with Seller's past practice; (g) make any material loans or advances to any partnership, firm or corporation, or, except for expenses incurred in the ordinary course of business, any individual; (vih) make any settlement or compromise with tax authorities, apply to change any material method of accounting for Tax purposes or make any material Tax elections, to the extent that any of the foregoing affect the Assets of the Sold Subsidiaries; (i) intentionally do any other act which would cause any representation or warranty of Seller in this Agreement to be become untrue in any material respect; (j) enter into or amend any agreement, contract or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000; (vii) purchase any private label credit card portfolio involving a purchase price in excess of $10,000,000; or (viii) agree, whether in writing or otherwiseotherwise become obligated, to do any of the foregoingaction prohibited hereunder.

Ordinary Conduct. Except as set forth on in Section 7(b) of the Disclosure Schedule 4.2 or otherwise permitted as expressly contemplated by the terms of this AgreementAgreement (including Section 10(g) hereof), from the date hereof to through the ClosingCut-Off Date, Seller shall (i) the Company will cause the business of the Subsidiaries and their subsidiaries Business to be conducted in the ordinary course in substantially all material respects in the same manner as presently conducted and shall will maintain proper business and accounting records, and make all reasonable efforts consistent with past practices to preserve their the Business, including, without limitation, the organization thereof, and relationships of the Business with its material customers and suppliers, officer-level Employees and others with whom the Subsidiaries deal and (ii) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiariesit has a material business relationship. In addition, including any directors and officer insurance. Except except as set forth on in Section 7(b) of the Disclosure Schedule 4.2 or otherwise permitted as expressly contemplated by the terms of this Agreement, from the date hereof until the ClosingCompany will not, neither and will not permit any of the Subsidiaries or their subsidiaries shall other Sellers to, do any of the following without the prior written consent of Purchaser (which consent will not be unreasonably withheld):Buyer: (i) enter into or amend their certificate of incorporation or by-laws or similar documentsany collective bargaining agreement relating to the Business; (ii) other than retention agreements not extending past the Cut-Off Date, grant to any officer or director-level Employee any increase in compensation or other material benefits, except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon as may be required under existing agreements or in respect the ordinary course of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Sellerbusiness consistent with past practice; (iii) redeem grant any mortgage, pledge, lien or otherwise acquire encumbrance on, or agree to the imposition of any shares restriction or charge of their any kind with respect to, any of the Assets, other than pursuant to purchase money agreements, conditional sales contracts, capital stock leases, operating leases or issue any capital stock or any optionLicenses affecting non Real Estate Assets, warrant or right relating thereto or any securities convertible into or exchangeable for any shares the non- disclosure of capital stockwhich in Section 6(k) of the Disclosure Schedule would not constitute a misrepresentation under Section 6(k) hereof; (iv) acquire by merging sell, transfer or consolidating lease any material Assets to, or enter into any material agreement, contract or arrangement with, or by purchasing a substantial portion any of its affiliates other than Sellers relating to the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof Business; (v) purchase or otherwise acquire any assets or make any capital expenditures constituting Assets that are material, individually or in the aggregate, to the Subsidiaries Business (other than (A) purchases of inventory in the ordinary course of business consistent with past practice, (B) such capital expenditures that, together with all other such capital expenditures made by the Company since May 1, 2004, do not exceed an amount equal to the expenditures contemplated by the capital expenditure plans provided by Sellers to Buyer plus $5 million in the aggregate, (C) capital expenditures required under Real Estate Agreements for capital improvements that are not controlled exclusively by Sellers, (D) capital expenditures required by any governmental or their subsidiariesregulatory authority, and (E) opening Accounts and creating Receivables in the ordinary course of business; (vvi) sell, lease sell or otherwise dispose of any of their assets Assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiaries, except Business (other than sales of inventory in the ordinary course of business; (vi) enter into or amend any agreement, contract or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000business consistent with past practice); (vii) purchase materially adversely modify, amend or terminate any private label credit card portfolio involving of the Material Contracts, Leasehold Interests or Real Estate Agreements or take or fail to take any other action with respect thereto or with respect to any Real Estate which would materially adversely affect Buyer's rights or obligations with respect thereto, except terminations upon expiration of the term of a purchase price Material Contract, Leasehold Interest or Real Estate Agreement; (viii) make any change in excess accounting methods or principles applicable to the Business; (ix) permit any Seller's right with respect to material Intellectual Property to lapse or be cancelled; (x) waive or release any rights of $10,000,000any material value of or with respect to the Business; (xi) materially modify any terms, policies, practices or procedures relating to the Portfolio Assets; or (viiixii) agree, whether in writing or otherwise, to do any of the foregoing.. -40-

Ordinary Conduct. Except as set forth on in Section 7(b) of the Disclosure Schedule 4.2 or otherwise permitted as expressly contemplated by the terms of this AgreementAgreement (including Section 10(g) hereof), from the date hereof to through the ClosingCut-Off Date, Seller shall (i) the Company will cause the business of the Subsidiaries and their subsidiaries Business to be conducted in the ordinary course in substantially all material respects in the same manner as presently conducted and shall will maintain proper business and accounting records, and make all reasonable efforts consistent with past practices to preserve their the Business, including, without limitation, the organization thereof, and relationships of the Business with its material customers and suppliers, officer-level Employees and others with whom the Subsidiaries deal and (ii) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiariesit has a material business relationship. In addition, including any directors and officer insurance. Except except as set forth on in Section 7(b) of the Disclosure Schedule 4.2 or otherwise permitted as expressly contemplated by the terms of this Agreement, from the date hereof until the ClosingCompany will not, neither and will not permit any of the Subsidiaries or their subsidiaries shall other Sellers to, do any of the following without the prior written consent of Purchaser (which consent will not be unreasonably withheld):Buyer: (i) enter into or amend their certificate of incorporation or by-laws or similar documentsany collective bargaining agreement relating to the Business; (ii) other than retention agreements not extending past the Cut-Off Date, grant to any officer or director-level Employee any increase in compensation or other material benefits, except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon as may be required under existing agreements or in respect the ordinary course of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Sellerbusiness consistent with past practice; (iii) redeem grant any mortgage, pledge, lien or otherwise acquire encumbrance on, or agree to the imposition of any shares restriction or charge of their any kind with respect to, any of the Assets, other than pursuant to purchase money agreements, conditional sales contracts, capital stock leases, operating leases or issue any capital stock or any optionLicenses affecting non Real Estate Assets, warrant or right relating thereto or any securities convertible into or exchangeable for any shares the non-disclosure of capital stockwhich in Section 6(k) of the Disclosure Schedule would not constitute a misrepresentation under Section 6(k) hereof; (iv) acquire by merging sell, transfer or consolidating lease any material Assets to, or enter into any material agreement, contract or arrangement with, or by purchasing a substantial portion any of its affiliates other than Sellers relating to the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof Business; (v) purchase or otherwise acquire any assets or make any capital expenditures constituting Assets that are material, individually or in the aggregate, to the Subsidiaries Business (other than (A) purchases of inventory in the ordinary course of business consistent with past practice, (B) such capital expenditures that, together with all other such capital expenditures made by the Company since May 1, 2004, do not exceed an amount equal to the expenditures contemplated by the capital expenditure plans provided by Sellers to Buyer plus $5 million in the aggregate, (C) capital expenditures required under Real Estate Agreements for capital improvements that are not controlled exclusively by Sellers, (D) capital expenditures required by any governmental or their subsidiariesregulatory authority, and (E) opening Accounts and creating Receivables in the ordinary course of business; (vvi) sell, lease sell or otherwise dispose of any of their assets Assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiaries, except Business (other than sales of inventory in the ordinary course of business; (vi) enter into or amend any agreement, contract or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000business consistent with past practice); (vii) purchase materially adversely modify, amend or terminate any private label credit card portfolio involving of the Material Contracts, Leasehold Interests or Real Estate Agreements or take or fail to take any other action with respect thereto or with respect to any Real Estate which would materially adversely affect Buyer’s rights or obligations with respect thereto, except terminations upon expiration of the term of a purchase price Material Contract, Leasehold Interest or Real Estate Agreement; (viii) make any change in excess accounting methods or principles applicable to the Business; (ix) permit any Seller’s right with respect to material Intellectual Property to lapse or be cancelled; (x) waive or release any rights of $10,000,000any material value of or with respect to the Business; (xi) materially modify any terms, policies, practices or procedures relating to the Portfolio Assets; or (viiixii) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this AgreementAgreement (which permission includes without limitation the distribution of the Pre-Closing Dividend; it being Seller's intention to remove the Company's cash balance on or before to Closing), from the date hereof to the Closing, Seller shall (i) will cause the business of the Subsidiaries and their subsidiaries Company to be conducted in the ordinary course in substantially the same manner as presently conducted and shall will make all reasonable efforts consistent with past practices to preserve their its relationships with customers customers, suppliers and others with whom the Subsidiaries deal and (ii) maintain in effect all insurance Company deals. In addition, except as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof until the Closing, neither Agreement or as contemplated by Section 6.2 of the Subsidiaries or their subsidiaries shall Seller Disclosure Schedule, Seller will not permit the Company to do any of the following without the prior written consent of Purchaser (which consent will not be unreasonably withheld):Buyer: (i1) amend their adopt or propose any change in its certificate of incorporation or by-laws or similar documentsbylaws; (ii2) merge or consolidate with any other Person or acquire a material amount of assets from any other Person; (3) sell, lease, license or otherwise dispose of any material assets or property except (a) pursuant to existing contracts or commitments, or (b) otherwise in the ordinary course consistent with past practice; (4) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereofthe Pre-Closing Dividend, declare declare, set aside or pay any dividend dividends, or make any distributions or other distribution to their stockholders whether or not upon or payments in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller its equity securities, or any required payments on the indebtedness of Seller; (iii) repurchase, redeem or otherwise acquire any shares of their capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stocksuch securities; (iv5) acquire by merging enter into, amend or consolidating with, or by purchasing a substantial portion of the assets of, or by terminate any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesmaterial agreement; (v6) sell, lease or otherwise dispose accelerate collection of any notes or accounts receivable in advance of their assets that are material, individually regular due dates or in the aggregate, to the Subsidiaries or their subsidiaries, except dates when they would have been collected in the ordinary course of businessbusiness consistent with past practices; (vi7) enter into or amend delay payment of any agreementaccrued expense, contract trade payable or other arrangement (liability beyond its due date or series the date when such liability would have been paid in the ordinary course of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000; (vii) purchase any private label credit card portfolio involving a purchase price in excess of $10,000,000business consistent with past practices; or (viii) agree, whether in writing or otherwise, 8) agree to do any of the foregoing. Seller will not take, and will not permit the Company to take any action that would make any representation or warranty of Seller hereunder inaccurate in any material respect at the Closing Date.

Ordinary Conduct. Except as contemplated by this Agreement or as set forth on in Schedule 4.2 or otherwise permitted by the terms of this Agreement6.2, from the date hereof to the Closing, Seller shall (i) agrees to cause the business of the Subsidiaries and their subsidiaries Business to be conducted in the ordinary course in substantially the same manner as presently conducted and shall will make all reasonable efforts efforts, consistent with past practices practices, to preserve their relationships with customers employees, customers, suppliers and others with whom the Subsidiaries deal and (ii) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insuranceBusiness deals. Except as contemplated by this Agreement or as set forth on in Schedule 4.2 or otherwise permitted by the terms of this Agreement6.2, from the date hereof until the ClosingSeller will not, neither of the Subsidiaries or their subsidiaries shall do any of the following without the prior written consent of Purchaser (Buyer, which consent will not be unreasonably withheld):withheld or delayed, (i) take any action which would cause the representations and warranties of Seller herein to be untrue in any material respect or (ii) transfer any employee of the Business to another business of Seller or transfer any employee of another Seller business to the Business. Seller will provide Buyer with interim monthly financial statements of the Business and other management reports as and when they are available. Without limiting the generality of the foregoing, Seller shall not, except as specifically contemplated by this Agreement: (a) enter into, extend, materially modify, terminate or renew any Contract or Lease, except in the ordinary course of business; (b) sell, assign, transfer, convey, lease, mortgage, pledge or otherwise dispose of or encumber any material Assets, or any interests therein, except in the ordinary course of business; (i) amend their certificate except as otherwise required by law, take any action with respect to the grant of incorporation any bonus, severance, continuation or by-laws termination pay (otherwise than pursuant to policies or similar documents;agreements of Seller in effect on the date hereof) or with respect to any increase of benefits payable under its severance or termination pay policies or agreements in effect on the date hereof or increase in any material respect the compensation or fringe benefits of any employee or pay any benefits not required by any existing Employee Benefit Plan or Employee Benefit Arrangement, in each case other than in the ordinary course of business, consistent with past practice. (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or change in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness key management structure of Seller, including, without limitation, the hiring of additional officers or the termination of existing officers other than in the ordinary course of business; (iii) redeem except in the ordinary course of business, adopt, enter into or otherwise acquire amend any shares of their capital stock Employee Benefit Plan or issue Employee Benefit Arrangement (including, without limitation, any capital stock collective bargaining or employment agreement), or any optiontrust, warrant fund or right relating thereto other arrangement for the benefit or welfare of any securities convertible into or exchangeable for any shares of capital stockemployee; (ivd) acquire by merging merger or consolidating consolidation with, or by purchasing a substantial portion merge or consolidate with, or purchase substantially all of the assets of, or by otherwise acquire any other manner, any material assets or business or of any corporation, partnership, association or other business organization or division thereof if the assets or otherwise acquire any assets that are material, individually or business so acquired would be included in the aggregate, to the Subsidiaries or their subsidiariesBusiness; (ve) sell, lease make any capital expenditure or otherwise dispose of enter into any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiariescommitment for capital expenditures, except in accordance with the capital expenditures budget heretofore delivered to Buyer; (f) fail to maintain the Assets in substantially their current state of repair, excepting normal wear and tear, and replace inoperable, worn-out or obsolete or destroyed Assets, in each case in accordance with Seller’s past practice; (g) make any material loans or advances to any partnership, firm or corporation, or, except for expenses incurred in the ordinary course of business, any individual; (vih) make any settlement or compromise with tax authorities, apply to change any material method of accounting for Tax purposes or make any material Tax elections, to the extent that any of the foregoing affect the Assets of the Sold Subsidiaries; (i) intentionally do any other act which would cause any representation or warranty of Seller in this Agreement to be become untrue in any material respect; (j) enter into or amend any agreement, contract or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000; (vii) purchase any private label credit card portfolio involving a purchase price in excess of $10,000,000; or (viii) agree, whether in writing or otherwiseotherwise become obligated, to do any of the foregoingaction prohibited hereunder.

Ordinary Conduct. (a) Except as set forth on Schedule 4.2 or otherwise permitted specifically contemplated by the terms of this Agreement, from the date hereof to the ClosingEffective Time, Seller shall (i) agrees to cause the business of the Subsidiaries and their subsidiaries Business to be conducted only in the ordinary and usual course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices practice, but subject to any deviations therefrom which are caused by cash flow limitations of Seller. (b) Except as specifically contemplated by this Agreement, Seller shall, and shall cause Banshee to, use diligent efforts to preserve the Business Contracts and Licenses in full force and effect, to preserve the goodwill of all Governmental Authorities, to maintain all of the Assets in reasonable and customary repair, operating order and condition, to preserve the goodwill of their customers and suppliers and others having business relationships with Seller, Banshee or any Sold Subsidiary, and to preserve their relationships business organization intact and to keep available the services of their present employees. (c) Seller shall, and shall cause Banshee to, maintain their books, accounts and records relating to the Business, the Assets and the Assumed Liabilities in the usual, regular and ordinary manner in accordance with customers accounting principles and others business practices applied on a basis consistent with whom the Subsidiaries deal prior periods unless required by IFRS and disclosed to Buyer prior to instituting such changes; (iid) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as set forth on Schedule 4.2 or otherwise permitted specifically contemplated by the terms of this Agreement, during the period from the date hereof until to the ClosingEffective Time, neither Seller will not, and will cause Banshee and each of the Sold Subsidiaries or their subsidiaries shall do to not, take any of the following actions without the prior written consent of Purchaser (which consent will not be unreasonably withheld):Buyer: (i) amend their certificate transfer, issue, sell, pledge or dispose of incorporation any capital stock or by-laws other securities of any of Banshee or similar documentsany of the Sold Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire capital stock of Banshee or any of the Sold Subsidiaries; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereofeffect any recapitalization, declare reclassification, stock split, stock combination or pay any dividend or make any other distribution to their stockholders whether or not upon or like change in respect the capitalization of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of SellerSold Subsidiaries; (iii) redeem redeem, purchase or otherwise acquire acquire, directly or indirectly, any shares of their capital stock or issue any capital stock or any optionequity interests or other securities of Seller, warrant Banshee or right relating thereto or of any securities convertible into or exchangeable for any shares of capital stockSold Subsidiary; (iv) amend or modify, or accelerate, amend or change the period of exercisability or vesting of, any outstanding stock options, warrants, convertible or exchangeable securities, calls, or other rights to purchase or otherwise acquire capital stock, of any Sold Subsidiary, or adopt, authorize or amend any stock or equity appreciation rights, restricted stock or equity, stock or equity purchase, stock or equity bonus, option or similar plan, arrangement or agreement; (v) declare, set aside, pay or make any dividend or other distribution or payment (whether in cash, property or securities) with respect to Seller's, Banshee's or any Sold Subsidiary's capital stock or other securities; (vi) propose to amend or amend the memorandum of association, articles of association, certificate of incorporation or bylaws or similar documents of Seller, Banshee or any Sold Subsidiary in a manner that adversely affects the Transactions; (vii) (A) grant any material increase in the annual level of compensation or benefits of any Business Employee, other than increases in compensation in the ordinary course of business consistent with past practice, (B) except as required to comply with applicable Law, enter into any new Employee Benefit Plan or amend any Employee Benefit Plan or (C) enter into any employment, deferred compensation, severance, retention, consulting, non-competition or similar agreement (or amend any such agreement) with any Business Employee other than agreements entered into in the ordinary course of business consistent with past practice that are not severance agreements; (viii) modify, amend, renew or enter into any directors' and officers' insurance policy with respect to Seller, Banshee or any Sold Subsidiary; (ix) pay, discharge or satisfy claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than any payment, discharge or satisfaction in the ordinary course of business consistent with past practice; (x) permit any of the Sold Subsidiaries to incur any Indebtedness or to otherwise borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any liability (contingent or otherwise) of any other Person (except as the endorser of checks in the ordinary course of business and consistent with past practice); (xi) grant, create or suffer to exist any Lien on or with respect to all or any part of the Assets (whether tangible or intangible) or the proceeds thereof, or provide security for any outstanding unsecured indebtedness of, or additional security for any outstanding secured indebtedness of, Seller, Banshee or any Sold Subsidiary; (xii) accelerate the payment of, or otherwise prepay, any existing outstanding Indebtedness of Seller, Banshee or any Sold Subsidiary; (xiii) other than the normal cash management practices (including reimbursement of expenses) of Seller, Banshee and the Sold Subsidiaries conducted in the ordinary and usual course of business and consistent with past practice, make any advance or loan to or engage in any transaction with any stockholder, director, former director, officer, former officer, partner, Affiliate or Equity Affiliate of Seller, Banshee or any Sold Subsidiary not required by the terms of an existing Business Contract described in Schedule 4.12; (xiv) except in the ordinary course of business consistent with past practice, sell, transfer, or otherwise dispose of any of the Assets which have a sales price in excess of $10,000; (xv) enter into any commitment for capital expenditures relating to the Business not contemplated by the capital expenditure budget of Seller, Banshee and the Sold Subsidiaries heretofore provided to Buyer; (xvi) enter into, modify or terminate any labor or collective bargaining agreement relating to the Business or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization relating to Business Employees; (xvii) enter into any transaction or make or enter into or assume any Contract relating to the Business which by reason of its size or otherwise is not in the ordinary course of business: (xviii) with respect to the Business, authorize, propose, enter into or agree to enter into any acquisition of a material amount of assets or securities; or acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to otherwise acquire any assets that are material, individually or in the aggregate, to the Seller and its Subsidiaries or their subsidiariestaken as a whole; (vxix) sellsettle or compromise any claims, lease litigation or otherwise dispose arbitration; (xx) cancel or forgive any Indebtedness, or waive any claims or rights under the Business Contracts or with respect to the Assets; (xxi) voluntarily withdraw any application for, or permit the expiration of any of their assets that are materialrenewable rights with respect to, individually or fail to maintain any Intellectual Property; (A) modify or change in the aggregateany material respect any License or any Business Contract, to the Subsidiaries or their subsidiaries, except other than in the ordinary course of businessbusiness consistent with past practice; (B) terminate any License or Business Contract; or (C) offer to enter into, assume or enter into, a Contract with any Person where the terms and provisions so offered, or the terms and provisions of the Contract to be entered into or assumed would give any other Person (an "MFN Beneficiary") the right to require at any time that the terms and conditions of such MFN Beneficiary's Contract with Seller, Banshee or any Sold Subsidiary be adjusted, changed or modified (including retroactively) in any manner based upon the terms and provisions in the first Person's Contract, or that such Contract be terminated; (viA) modify or change in any respect, or terminate any agreement related to material Intellectual Property; (B) provide, or enter into any Contract that provides, or amend, modify or change any existing Business Contract to provide (1) any assignment, grant-backs, cross-license, of, or covenant not-to-xxx, covenant not to assert or grant of release regarding, any Intellectual Property, (2) the granting or licensing to any other Persons of (x) any exclusive right (within any geographic area or line of products or services or field of use) to use any of Seller's, Banshee's or any Sold Subsidiary's owned or licensed Intellectual Property or (y) any right (within any geographic area or line of products or services or field of use) to use any of Seller's, Banshee's or any Sold Subsidiary's material owned or licensed Intellectual Property; (3) any Person with the right to require that the terms and conditions of such Person's Business Contract with Seller, Banshee or any Sold Subsidiary be adjusted, changed or modified (including retroactively) in any manner based upon the terms and provisions in another Business Contract (any such Contract containing such a provision being referred to herein as an "MFN Contract"); (4) that Seller, Banshee or any Sold Subsidiary would be required to exclusively use the products or services provided by another party (or an Affiliate thereof) or a specified third party (or refrain from using the products and services of any Person other than such other party or such specified other Person) within any geographic area or line of products or services or field of use, (5) that Seller, Banshee or any Sold Subsidiary will not xxx or otherwise institute legal action against any other Person for any reason, (6) any agreements with third parties for the exchange and/or protection of confidential information, (7) rights or obligations that are binding upon, or purport to be binding upon, any Person (other than any Sold Subsidiary) that is not a party to such Contract (8) any provisions requiring Seller, Banshee or any Sold Subsidiary to indemnify any Person; (9) that Seller, Banshee or any Sold Subsidiary guarantee any Person a particular amount of payment from Seller, Banshee or any Sold Subsidiary irrespective of such Person's performance of any of its obligations; or (10) a Change of Control Covenant with respect to Seller, Banshee or any Sold Subsidiary; (C) terminate or modify or change in any material respect any agreement setting forth a covenant or assignment implementing the policies described in Section 4.11(d); (D) xxx or otherwise institute legal action (including by the assertion of a counterclaim) against any Person for any reason; or (E) solicit, initiate or encourage inquiries or submission of proposals or offers from any Person relating to any of the foregoing; (xxiv) (A) make, revoke or amend any Tax election, (B) make any material change in any accounting, financial reporting or Tax practice or policy, (C) execute any waiver of restrictions on assessment or collection of any Tax, (D) enter into or amend any agreementagreement or settlement with any Tax authority, contract or other arrangement (or series of related agreementsE) change Seller's, contracts or other arrangements) by which the Subsidiaries Banshee's or any of their properties Sold Subsidiary's auditors or assets are bound which has an aggregate future liability (F) permit any insurance policy naming it as a beneficiary or receivable loss- payable payee to any person be cancelled or terminated, except, in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may beof clause (F), by notice in the ordinary course of not more than 60 days for an aggregate cost of less than $1,000,000business consistent with past practice; (viixxv) purchase except as otherwise contemplated by this Agreement, make any private label credit card portfolio involving a purchase price changes to the corporate structure of Seller, Banshee or any Sold Subsidiary (including the structure of the ownership by Seller of the direct interests in excess Banshee and the Sold Subsidiaries, the direct and indirect ownership of $10,000,000the Excluded Subsidiaries, and the ownership by Seller and the Sold Subsidiaries of their respective businesses and assets); or (viiixxvi) agree, whether in writing enter into or otherwise, assume any Contract or arrangement with respect to do any of the foregoing.

Ordinary Conduct. Except as set forth on in Section 5.02 of the Seller Disclosure Schedule 4.2 or otherwise expressly permitted by the terms of this Agreement, from the date hereof to the Closing, Seller shall (i) cause the business of the Subsidiaries and their subsidiaries Business to be conducted in the ordinary course in substantially the same manner as presently conducted currently conducted, including as to capital spending, and shall make all commercially reasonable efforts consistent with past practices practice to preserve their the relationships of the Business with customers material customers, suppliers, employees and others with which or whom the Subsidiaries deal Company, the Company Subsidiary or the applicable Seller Entity deals. Prior to the Closing, Seller shall cause the Company Subsidiary to use commercially reasonable efforts to reduce leakage under the Aetna U.S. HealthCare ("USHC") and Prudential Insurance Company of America (ii"Prudential") maintain laboratory network management contracts which will include using commercially reasonable efforts to enter into subcontracts for laboratory services and using commercially reasonable efforts to require USHC and Prudential to meet their respective contractual obligations to reduce leakage. Seller shall not be obligated to, directly or indirectly, provide any funds to the Company, the Company Subsidiary or the applicable Seller Entity other than in effect all insurance the ordinary course of business consistent with past practice. From the date hereof to the Closing, Seller shall not, and shall not permit the Company, the Company Subsidiary, Seller Subsidiary or any Seller Entity to, take any action that would, or that could reasonably be expected to, result in any of the conditions to the purchase and sale of the Shares or the Other Assets set forth in Section 10.01 not being satisfied. In addition, except as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except Buyer otherwise consents in writing or as set forth on in Section 5.02 of the Seller Disclosure Schedule 4.2 or otherwise expressly permitted by the terms of this Agreement, from the date hereof until to the Closing, neither of Seller shall not permit the Subsidiaries or their subsidiaries shall Company, the Company Subsidiary and, with respect to the Other Assets, the Seller Entities to do any of the following without the prior written consent of Purchaser (which consent will not be unreasonably withheld):Buyer: (ia) in the case of the Company or the Company Subsidiary, amend their certificate its Certificate of incorporation Incorporation or by-laws or similar documentsBylaws; (iib) except for payments in the case of all amounts necessary to satisfy Section 7.2(iv) hereofthe Company or the Company Subsidiary, declare or pay any dividend or make any other distribution to their its stockholders whether or not upon or in respect of any shares of their its capital stock except for stock; provided, however, that (i) Buyer acknowledges that neither the Company nor the Company Subsidiary maintains cash balances and, from time to time and at the time of the Closing, Seller will cause to be withdrawn any cash balances of the Company and the Company Subsidiary, which withdrawals may be made, among other things, as dividends necessary or distributions to pay any required tax payments Seller Subsidiary or its Affiliates and (ii) dividends and distributions may continue to be made by Seller or any required payments on the indebtedness of SellerCompany Subsidiary to the Company; (iiic) in the case of the Company or the Company Subsidiary, redeem or otherwise acquire any shares of their its capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (ivd) adopt or amend in any material respect any Company Benefit Plan or collective bargaining agreement, except as required by Applicable Law; (e) grant to any executive officer or employee of the Company or the Company Subsidiary or to be transferred to Buyer in accordance with Section 8.13 any increase in compensation or benefits, except in the ordinary course of business consistent with past practice or as may be required under existing agreements or by Applicable Law and except for any increases for which Seller shall be solely obligated; (f) incur or assume any liabilities or indebtedness for borrowed money or guarantee any such or indebtedness, other than intercompany debt between the Company and the Company Subsidiary or intercompany debt between the Company or the Company Subsidiary, on one hand, and Seller or any Affiliate of Seller, on the other hand, which in each case will be repaid, forgiven or otherwise terminated on or prior to the Closing Date; (g) make any change in any accounting policy of the Business other than those required by U.S. GAAP or Applicable Law of the United States or any political subdivision or agency thereof; (h) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that (other than Inventory in the ordinary course of business consistent with past practice) which are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesBusiness, taken as a whole; (vi) make or incur any capital expenditure that is not currently approved in writing and consistent with the budget for the period between the date hereof and the Closing (a copy of such budget is set forth as Section 5.02(i) of the Seller Disclosure Schedule) and which, individually, is in excess of $1,000,000 or, in the aggregate, are in excess of $5,000,000; (j) sell, lease or otherwise dispose of any of their its assets that which are material, individually or in the aggregate, to the Subsidiaries Company, the Company Subsidiary, or their subsidiariesthe Other Assets taken as a whole, except in the ordinary course of business consistent with past practice; (k) enter into any lease of real property, other than in the ordinary course of business consistent with past practice with respect to leases under which an aggregate amount of less than $250,000 is payable per annum, except any renewals of existing leases in the ordinary course of business; (vil) enter into any arrangement that will outsource activities currently performed by Continued Employees involving payments in excess of $250,000 per annum; (m) settle any claim or litigation if such settlement (x) would result in material injunctive or other equitable relief or (y) relates to the matters referenced in Section 11.06(b) unless paid before the Closing Date; (n) enter into any agreement or arrangement that would be a Company Contract under paragraph (iii) of Section 3.11(a) if in existence on the date hereof or modify, terminate or amend any such Company Contract; (o) make any material federal, state, local or foreign tax election except for elections made in the ordinary course of business, in accordance with past practice or, provided Seller notifies Buyer of such change, are required by any change in Applicable Law; (p) enter into any agreement, contract or other arrangement instrument requiring the Company or the Company Subsidiary to (or series of related agreements, contracts or other arrangementsA) by which the Subsidiaries or refer any of their properties or assets are bound which has an aggregate future liability or receivable anatomic pathology specimens to any person provider of anatomic pathology services, or (B) refer any clinical laboratory specimens to any clinical laboratory other than a clinical laboratory owned, managed or operated by the Company or the Company Subsidiary, in excess of $1,000,000 or each case which is not terminable by the SubsidiariesCompany, as the case may beCompany Subsidiary, Seller or the applicable Seller Entity by notice of not more than 60 90 days for an aggregate cost of less than $1,000,000without penalty therefor; (viiq) purchase enter into any private label credit card portfolio involving a purchase price in excess of $10,000,000agreement, contract or other instrument requiring the Company or the Company Subsidiary to provide any clinical laboratory data to any third party (other than data that relates to, or is derived from, the Clinical Laboratory Services provided to such third party) or pursuant to which the Company or the Company Subsidiary assigns ownership to any clinical laboratory data to any third party; or (viiir) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. (a) Except as set forth on in Section 5.02 of the Seller Disclosure Schedule 4.2 or otherwise permitted contemplated by the terms of this Agreement, from the date hereof to the Closing, Seller shall (i) cause the business of Company and the Company Subsidiaries and their subsidiaries to be conducted conduct the Business in the ordinary course in substantially the same manner as presently conducted and shall make all to use commercially reasonable efforts consistent with past practices to (i) preserve their the Business’s relationships with customers and others with whom the Subsidiaries deal suppliers and (ii) maintain keep available the services of executive officers and key employees of the Business. Seller shall use commercially reasonable efforts (without any requirement to offer or provide any benefit or accommodation, economic or otherwise) to assist Buyer in effect all insurance as its efforts to which cause the Subsidiaries and Transferred Employees to become employed by the Company or a Company Subsidiary at or prior to the Closing on terms that match their subsidiaries are beneficiaries, including any directors and officer insurance. current compensation or other terms acceptable to Buyer. (b) Except as set forth on in Section 5.02 of the Seller Disclosure Schedule 4.2 or otherwise permitted contemplated by the terms of this Agreement, from the date hereof until to the Closing, neither of the Company nor the Company Subsidiaries shall, and Seller shall not permit the Company or their subsidiaries shall any Company Subsidiary to, do any of the following without the prior written consent of Purchaser (which consent will not be unreasonably withheld):Buyer: (i) amend their certificate its Certificate of incorporation Incorporation or by-laws Bylaws or similar charter documents; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their its stockholders whether or not upon or in respect of any shares of their its capital stock except for stock, other than dividends necessary or other distributions paid or made solely to pay 29 the Company or any required tax payments other Company Subsidiary; provided, however, that (A) Buyer acknowledges that the Company does not maintain cash balances and, at the time of the Closing, Seller will withdraw any cash balances of the Company, and (B) dividends and distributions of cash may continue to be made by the Company to Seller or any required payments on its Affiliates prior to the indebtedness of SellerClosing; (iii) redeem or otherwise acquire any shares of their its capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) liquidate or dissolve or adopt any plan of liquidation, dissolution, merger, consolidation or other reorganization; (v) grant to any director, manager, officer or employee of the Company or any Company Subsidiary any increase in compensation or benefits, except in the ordinary course of business consistent with past practice or as may be required under existing agreements, or enter into, adopt or materially amend any employment, consulting, bonus, commission, severance or retirement contract or agreement or adopt any employee bonus or benefit plan, other than in the ordinary course of business consistent with past practice; (vi) incur or assume any Debt or guarantee any such Debt, in each case other than accounts payable and other accrued liabilities for the payment for goods and services incurred in the ordinary course of business consistent with past practice; (vii) permit, allow or suffer any of its Assets to become subjected to any mortgage, Lien, security interest, encumbrance, easement, covenant, right of way or other similar restriction of any nature whatsoever which would have been required to be set forth in Section 4.10(a) or Section 4.12(a) of the Seller Disclosure Schedule if existing on the date of this Agreement; (viii) cancel any material Debt (individually or in the aggregate) or cancel or waive any claims or rights with a value to the Company or any Company Subsidiary in excess of $250,000 (ix) except for (A) dividends and distributions permitted under clause (ii) above, and (B) intercompany transactions in the ordinary course of business or necessary to settle intercompany accounts prior to the Closing, pay, loan or advance any amount to, or sell, transfer or lease any of its Assets to, or enter into any agreement or arrangement with, Seller or any of its Affiliates other than the Company and the Company Subsidiaries; (x) make any change in any method of accounting or accounting practice or policy other than those required by GAAP or Applicable Law; (xi) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets Assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets Assets (other than inventory in the ordinary course of business consistent with past practice); (xii) make or incur any capital expenditure that is not currently approved in writing or budgeted which, individually, is in excess of $100,000, or make or incur any such expenditures which, in the aggregate, are in excess of $500,000; (xiii) sell, lease or otherwise dispose of any of its Assets which are material, individually or in the aggregate, to the Subsidiaries Business (other than inventory in the ordinary course of business consistent with past practice), or their subsidiariesenter into any lease of any personal property except leases entered into in the ordinary course of business consistent with past practice; (vxiv) sell, enter into any lease or otherwise dispose of any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesreal property, except any renewals of existing leases in the ordinary course of business; (vixv) modify, amend, terminate or permit the lapse of any lease of, or reciprocal easement agreement, operating agreement or other material agreement relating to, real property (except modifications or amendments associated with renewals of existing leases in the ordinary course of business consistent with past practice); (xvi) make or change any Tax election, change an annual accounting period in respect of Taxes, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement in respect of Taxes, settle any Tax claim or amend any agreement, contract or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable assessment relating to any person Taxes in excess of $1,000,000 5,000, or is not terminable by consent to any extension or waiver of the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000limitation period applicable to any Tax claim or assessment; (viixvii) purchase terminate the employment of any private label credit card portfolio involving of the Certain Employees, other than for cause, or transfer any employee from Seller or another subsidiary of Seller to the Company or a purchase price Company Subsidiary, or transfer any employee of the Company or any Company Subsidiary to Seller or another subsidiary of Seller; (xviii) enter into any collective bargaining agreement or other contract or agreement with any labor organization; (xix) make any loans, advances or capital contributions, except for advances for travel and other normal business expenses to directors, managers, officers and employees in excess the ordinary course of $10,000,000business consistent with past practice; (xx) plan, announce or implement any reduction in work force, lay‑off, early retirement program, severance program or other program concerning the termination of employment of employees that would constitute a “mass layoff” or “plant closing” (as defined under the Worker Adjustment and Retraining Notification Act of 1988) and any similar state or other Applicable Law; (xxi) modify, cancel or terminate any Contract other than modifications, renewals, cancelations and terminations of Contracts in the ordinary course of business; (xxii) materially change the Company’s or any Company Subsidiary’s policies with regard to the payment of accounts payable or the collection of accounts receivable; or (viiixxiii) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. (a) Except as specifically contemplated by this Agreement or as set forth on in Schedule 4.2 or otherwise permitted by the terms of this Agreement6.2, from the date hereof to the Closing, Seller shall (i) Sellers agree to cause the business of the Subsidiaries and their subsidiaries Business to be conducted only in the ordinary and usual course consistent with past practice. (b) Except as specifically contemplated by this Agreement or in the ordinary course in substantially of the same manner as presently conducted and shall make all reasonable efforts Business consistent with past practices practice, each Seller shall use commercially reasonable efforts to preserve their the Contracts in full force and effect, to preserve the goodwill of all Governmental Authorities, to maintain all of the Purchased Assets in reasonable and customary repair, operating order and condition and to preserve the goodwill of its customers and suppliers and others having business relationships with customers it and others to preserve its business organization intact. (c) Each Seller shall maintain its books, accounts and records relating to the Business, the Purchased Assets and the Assumed Liabilities in the usual, regular and ordinary manner in accordance with whom the Subsidiaries deal accounting principles and business practices applied on a basis consistent with prior periods unless required by GAAP and disclosed to Buyer prior to instituting such changes; (iid) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as set forth on Schedule 4.2 or otherwise permitted specifically contemplated by the terms of this Agreement, from the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall do Sellers will not take any of the following actions without the prior written consent of Purchaser (Buyer, which consent will not be unreasonably withheld):withheld or delayed: (i) amend their certificate transfer any Business Employee to another business of incorporation Sellers or by-laws or similar documentstransfer any employee of another of Ameron’s businesses to the Business; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereoftransfer, declare issue, sell or pay any dividend or make any other distribution to their stockholders whether or not upon or in respect dispose of any shares of their capital stock except for dividends necessary Minority Shares or grant options, warrants, calls or other rights to pay purchase or otherwise acquire any required tax payments by Seller or any required payments on the indebtedness of SellerMinority Shares; (iii) redeem propose to amend or otherwise acquire amend the certificate of incorporation or bylaws or similar documents of any shares of their capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stockSeller in a manner that adversely affects the Transactions; (iv) acquire by merging (A) grant any material increase in the annual level of compensation or consolidating withbenefits of any Business Employee, or by purchasing a substantial portion other than increases in compensation in the ordinary course of the assets ofBusiness consistent with past practice, (B) except as required to comply with applicable Law, enter into any new Employee Benefit Plan or by amend any Employee Benefit Plan or (C) enter into any employment, deferred compensation, severance, retention, consulting, non-competition or similar agreement (or amend any such agreement) with any Business Employee other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets than (y) agreements entered into in the ordinary course of the Business consistent with past practice that are material, not severance agreements and which do not obligate any Seller or Buyer to pay compensation exceeding One Hundred Twenty Five Thousand Dollars ($125,000) individually or One Million Five Hundred Thousand Dollars ($1,500,000) in the aggregate, aggregate or One Million Dollars ($1,000,000) for new hires and (z) retention bonuses necessary or advisable due to the Subsidiaries or their subsidiariesTransactions in Sellers’ sole and absolute discretion (the “Retention Bonuses”); (v) grant, create or (except for the Permitted Liens) suffer to exist any Lien on or with respect to all or any part of the Purchased Assets (whether tangible or intangible) or the proceeds thereof (except for the Permitted Liens); (vi) except in the ordinary course of the Business consistent with past practice, sell, lease transfer, or otherwise dispose of any of their assets that are material, the Purchased Assets which have a sales price in excess of One Hundred Thousand Dollars ($100,000) individually or Five Hundred Thousand Dollars ($500,000) in the aggregate, ; (vii) transfer or grant any rights to any Intellectual Property outside the ordinary course of the Business; (viii) enter into any commitment for capital expenditures relating to the Subsidiaries Business not contemplated by the capital expenditure budget of Sellers heretofore provided to Buyer, in excess of One Hundred Thousand Dollars ($100,000); (ix) enter into, modify or their subsidiariesterminate any labor or collective bargaining agreement relating to the Business or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization relating to Business Employees; (x) enter into any transaction or make or enter into any material Contract relating to the Business which by reason of its size or otherwise is not in the ordinary course of the Business; (xi) with respect to the Business, authorize, propose, enter into or agree to enter into any acquisition of a material amount of assets or securities; (xii) except in the ordinary course of businessthe Business consistent with past practice, waive any claims or rights under the Contracts or with respect to the Purchased Assets; (vixiii) enter into terminate or amend assign any agreementMaterial Contract or voluntarily consent to the termination of any Material Contract (including, contract or other arrangement (or series of related agreementswithout limitation, contracts or other arrangementsany lease) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000other party thereto; (viixiv) purchase voluntarily withdraw any private label credit card portfolio involving a purchase price in excess application for, or permit the expiration of $10,000,000any renewable rights with respect to, or fail to maintain any Intellectual Property; or (viiixv) agreeenter into any contract, whether in writing agreement or otherwise, arrangement with respect to do any of the foregoing.

Ordinary Conduct. Except as set forth on Schedule 4.2 or otherwise permitted by (a) From the terms date hereof to the Closing, Seller shall conduct the Business in the Ordinary Course of this AgreementBusiness. Seller shall use all commercially reasonable efforts to preserve and protect its goodwill, rights, properties, assets and business, to keep available to itself and Purchaser the services of its employees, and to preserve and protect its relationships with its employees, officers, advertisers, suppliers, customers, creditors and others having business relationships with it. In addition, from the date hereof to the Closing, Seller shall (i) cause the business of the Subsidiaries and their subsidiaries to be conducted in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve their relationships with customers and others with whom the Subsidiaries deal and (ii) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall not do any of the following without the prior written consent of Purchaser (which Purchaser, such consent will not to be unreasonably withheld):withheld or unreasonably delayed: (i) fail to continue to conduct the Business of Seller in conformity with the representations and warranties set forth in Section 3.31; (ii) amend their its certificate of incorporation or by-laws or similar documents; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Sellerlaws; (iii) redeem incur any liabilities, obligations or otherwise acquire indebtedness for borrowed money or guarantee any shares such liabilities, obligations or indebtedness, or increase (other than increases resulting from the calculation of their capital stock reserves in the Ordinary Course of Business), or issue experience any capital stock change in any assumptions underlying or methods of calculating, any optionbad debt, warrant contingency or right relating thereto or any securities convertible into or exchangeable for any shares of capital stockother reserves; (iv) permit, allow or suffer any of its assets, including, without limitation, the Purchased Assets, to be subjected to any mortgage, pledge, Lien, encumbrance, restriction or charge of any kind which is not disclosed in this Agreement; (v) pay, discharge or satisfy any claims, encumbrances, liabilities or obligations (whether absolute, accrued, contingent or otherwise and whether due or to become due) other than the payment when due in the Ordinary Course of Business of liabilities and obligations reflected or reserved against in the Most Recent Balance Sheet or incurred in the Ordinary Course of Business since the date thereof; (vi) pay, lend or advance any amount to, or sell, transfer or lease any of the Purchased Assets to, or enter into any agreement or arrangement with, any of the officers, directors or equity owners of Seller or any of its Affiliates; (vii) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets that are material, individually (other than Inventory or other assets acquired in the aggregate, to the Subsidiaries or their subsidiariesOrdinary Course of Business); (v) sell, lease or otherwise dispose of any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiaries, except in the ordinary course of business; (viviii) enter into or amend any agreementContract, contract or other arrangement (or series except for Contracts entered into in the Ordinary Course of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has Business and individually in an aggregate future liability or receivable to any person amount not in excess of $1,000,000 10,000.00 (other than any confidentiality, non-disclosure, non-competition or is not terminable by similar Contract); provided, however, that Seller shall have the Subsidiaries, as right to enter into Contracts in the case may be, by notice Ordinary Course of not more than 60 days for Business and individually in an aggregate cost of less than $1,000,000; (vii) purchase any private label credit card portfolio involving a purchase price amount in excess of $10,000,00010,000.00 (other than any confidentiality, non-disclosure, non-competition or similar Contract) only if Purchaser does not object to Seller's entering into such Contracts within three Business Days following Purchaser's receipt from Seller of the written notification of Seller's intention to enter into such Contracts; (ix) make, or commit to make, any capital expenditures other than those set forth on Exhibit C hereto and not in excess of the amounts set forth on such Exhibit; (x) fail to pay any account payable when due in accordance with its terms unless contested by Seller in good faith; (xi) make any other material change in the Business or the operation of Seller; or (viiixii) agree, whether in writing or otherwise, to do any of the foregoing. (b) From the date hereof to the Closing, Seller shall not enter into any licensing or similar arrangement with respect to or affecting the Business or the Purchased Assets. (c) From the date hereof to the Closing, subject to the terms and conditions of this Agreement, Seller shall use its reasonable efforts (i) to preserve the Purchased Assets and the Business intact, (ii) to keep available to Purchaser the services of the employees of the Business, and (iii) to preserve the goodwill of customers and others having business relations with Seller to the extent such business relations relate to the Purchased Assets.

Ordinary Conduct. (a) Except as set forth on in Section 5.02 of the Seller Disclosure Schedule 4.2 or otherwise permitted contemplated by the terms of this Agreement, from the date hereof to the Closing, Seller shall (i) cause the business of Company and the Company Subsidiaries and their subsidiaries to be conducted conduct the Business in the ordinary course in substantially the same manner as presently conducted and shall make all to use commercially reasonable efforts consistent with past practices to (i) preserve their the Business’s relationships with customers and others with whom the Subsidiaries deal suppliers and (ii) maintain keep available the services of executive officers and key employees of the Business. Seller shall use commercially reasonable efforts (without any requirement to offer or provide any benefit or accommodation, economic or otherwise) to assist Buyer in effect all insurance as its efforts to which cause the Subsidiaries and Transferred Employees to become employed by the Company or a Company Subsidiary at or prior to the Closing on terms that match their subsidiaries are beneficiaries, including any directors and officer insurance. current compensation or other terms acceptable to Buyer. (b) Except as set forth on in Section 5.02 of the Seller Disclosure Schedule 4.2 or otherwise permitted contemplated by the terms of this Agreement, from the date hereof until to the Closing, neither of the Company nor the Company Subsidiaries shall, and Seller shall not permit the Company or their subsidiaries shall any Company Subsidiary to, do any of the following without the prior written consent of Purchaser (which consent will not be unreasonably withheld):Buyer: (i) amend their certificate its Certificate of incorporation Incorporation or by-laws Bylaws or similar charter documents; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their its stockholders whether or not upon or in respect of any shares of their its capital stock except for stock, other than dividends necessary or other distributions paid or made solely to pay the Company or any required tax payments other Company Subsidiary; provided, however, that (A) Buyer acknowledges that the Company does not maintain cash balances and, at the time of the Closing, Seller will withdraw any cash balances of the Company, and (B) dividends and distributions of cash may continue to be made by the Company to Seller or any required payments on its Affiliates prior to the indebtedness of SellerClosing; (iii) redeem or otherwise acquire any shares of their its capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) liquidate or dissolve or adopt any plan of liquidation, dissolution, merger, consolidation or other reorganization; (v) grant to any director, manager, officer or employee of the Company or any Company Subsidiary any increase in compensation or benefits, except in the ordinary course of business consistent with past practice or as may be required under existing agreements, or enter into, adopt or materially amend any employment, consulting, bonus, commission, severance or retirement contract or agreement or adopt any employee bonus or benefit plan, other than in the ordinary course of business consistent with past practice; (vi) incur or assume any Debt or guarantee any such Debt, in each case other than accounts payable and other accrued liabilities for the payment for goods and services incurred in the ordinary course of business consistent with past practice; (vii) permit, allow or suffer any of its Assets to become subjected to any mortgage, Lien, security interest, encumbrance, easement, covenant, right of way or other similar restriction of any nature whatsoever which would have been required to be set forth in Section 4.10(a) or Section 4.12(a) of the Seller Disclosure Schedule if existing on the date of this Agreement; (viii) cancel any material Debt (individually or in the aggregate) or cancel or waive any claims or rights with a value to the Company or any Company Subsidiary in excess of $250,000 (ix) except for (A) dividends and distributions permitted under clause (ii) above, and (B) intercompany transactions in the ordinary course of business or necessary to settle intercompany accounts prior to the Closing, pay, loan or advance any amount to, or sell, transfer or lease any of its Assets to, or enter into any agreement or arrangement with, Seller or any of its Affiliates other than the Company and the Company Subsidiaries; (x) make any change in any method of accounting or accounting practice or policy other than those required by GAAP or Applicable Law; (xi) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets Assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets Assets (other than inventory in the ordinary course of business consistent with past practice); (xii) make or incur any capital expenditure that is not currently approved in writing or budgeted which, individually, is in excess of $100,000, or make or incur any such expenditures which, in the aggregate, are in excess of $500,000; (xiii) sell, lease or otherwise dispose of any of its Assets which are material, individually or in the aggregate, to the Subsidiaries Business (other than inventory in the ordinary course of business consistent with past practice), or their subsidiariesenter into any lease of any personal property except leases entered into in the ordinary course of business consistent with past practice; (vxiv) sell, enter into any lease or otherwise dispose of any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesreal property, except any renewals of existing leases in the ordinary course of business; (vixv) modify, amend, terminate or permit the lapse of any lease of, or reciprocal easement agreement, operating agreement or other material agreement relating to, real property (except modifications or amendments associated with renewals of existing leases in the ordinary course of business consistent with past practice); (xvi) make or change any Tax election, change an annual accounting period in respect of Taxes, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement in respect of Taxes, settle any Tax claim or amend any agreement, contract or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable assessment relating to any person Taxes in excess of $1,000,000 5,000, or is not terminable by consent to any extension or waiver of the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000limitation period applicable to any Tax claim or assessment; (viixvii) purchase terminate the employment of any private label credit card portfolio involving of the Certain Employees, other than for cause, or transfer any employee from Seller or another subsidiary of Seller to the Company or a purchase price Company Subsidiary, or transfer any employee of the Company or any Company Subsidiary to Seller or another subsidiary of Seller; (xviii) enter into any collective bargaining agreement or other contract or agreement with any labor organization; (xix) make any loans, advances or capital contributions, except for advances for travel and other normal business expenses to directors, managers, officers and employees in excess the ordinary course of $10,000,000business consistent with past practice; (xx) plan, announce or implement any reduction in work force, lay-off, early retirement program, severance program or other program concerning the termination of employment of employees that would constitute a “mass layoff” or “plant closing” (as defined under the Worker Adjustment and Retraining Notification Act of 1988) and any similar state or other Applicable Law; (xxi) modify, cancel or terminate any Contract other than modifications, renewals, cancelations and terminations of Contracts in the ordinary course of business; (xxii) materially change the Company’s or any Company Subsidiary’s policies with regard to the payment of accounts payable or the collection of accounts receivable; or (viiixxiii) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. Except During the period from the date of this Agreement to the earlier of the Closing and the date that this Agreement is terminated in accordance with its terms, Seller shall, and shall cause its Subsidiaries to, conduct the Business in the ordinary course consistent in all material respects with past practice and shall use commercially reasonable efforts to maintain in the ordinary course of business consistent in all material respects with past practice the business relations of Seller and the Acquired Subsidiaries with their respective suppliers, customers, Employees and others with whom either has material business relations in connection with the Business, and except as contemplated by this Agreement or as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof to the Closing6(b), Seller shall (i) cause the business of the Subsidiaries and their subsidiaries to be conducted in the ordinary course in substantially the same manner as presently conducted not, and shall make all reasonable efforts consistent with past practices to preserve their relationships with customers and others with whom the cause each of its Subsidiaries deal and (ii) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiariesnot to, including any directors and officer insurance. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall do any of the following without the prior written consent of Purchaser Buyer (which consent will not be unreasonably withheld, conditioned or delayed): (i) amend their certificate make any material change in the conduct of incorporation or by-laws or similar documentsthe Business, except for changes that are in the ordinary course of business consistent in all material respects with past practice; (ii) except for payments sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any of all amounts necessary to satisfy Section 7.2(iv) hereofthe Assets that are material (other than Intellectual Property, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or which is addressed in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Seller; clause (iii) redeem or otherwise acquire any shares of their capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that are materialbelow), individually or in the aggregate, to the Subsidiaries or their subsidiaries; (v) sell, lease or otherwise dispose of any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesBusiness taken as a whole, except sales of inventory in the ordinary course of business; (iii) encumber, abandon, permit to lapse or be cancelled or relinquish or otherwise fail to renew, any license or sublicense or otherwise convey rights under or with respect to the material Intellectual Property related to the Business, except in the ordinary course of business consistent in all material respects with past practice; (iv) mortgage, pledge or grant any security interest in any of the material Assets in connection with the borrowing of money, or otherwise voluntarily permit the imposition of any material lien on any of the Assets; (v) initiate a Product Promotion with respect to any Top Customer except as described in Schedule 6(b)(v) during the 60-day period commencing on the date of this Agreement or except in the ordinary course of business after such 60-day period; (vi) enter into make any material change in their accounting methods or amend practices (including without limitation any agreementmethod of accounting for inventory or accounts receivable), contract except insofar as may be required by a change in GAAP or other arrangement (or series of related agreementsapplicable law; provided that if such a change is made, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000then Seller shall provide Buyer with a reconciliation; (vii) purchase amend in a material manner or terminate any private label credit card portfolio involving a purchase price of the material Contracts, other than in excess the ordinary course of $10,000,000business or as otherwise necessary for the maintenance of property relating to Business; (viii) make or change any Tax election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to Seller or any of the Acquired Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax, if in any such case any of the foregoing would be materially adverse to the Buyer’s Tax position in respect of the Assets following the Closing; or (viiiix) agree, whether agree in writing or otherwise, otherwise to do any of the foregoing.

Ordinary Conduct. Except During the period from the date of this Agreement to the earlier of the Closing and the date that this Agreement is terminated in accordance with its terms, except as contemplated by this Agreement or as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof to the ClosingSection 5(c) Seller Disclosure Schedules, Seller shall (i) cause the business of the Subsidiaries and their subsidiaries to be conducted in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve their relationships with customers and others with whom the Subsidiaries deal and (ii) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall not do any of the following as relating to the Transferred Assets or to Assumed Liabilities without the prior written consent of Purchaser (which consent will not be unreasonably withheld, conditioned or delayed): (i) amend their certificate make any change in the conduct of incorporation or by-laws or similar documentsthe Business, except for changes that are in the ordinary course and consistent with past practice; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereofsell, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Seller; (iii) redeem lease, license or otherwise acquire any shares of their capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets dispose of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that are material, individually or in the aggregate, agree to the Subsidiaries or their subsidiaries; (v) sell, lease lease, license or otherwise dispose of of, any interest in any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesTransferred Assets, except in the ordinary course of business; (iii) mortgage, pledge or encumber any of the Transferred Assets, except in the ordinary course of business and except for Permitted Liens; (iv) amend or terminate any of the Transferred Contracts, other than in the ordinary course of business, or enter into any new Contracts that are to become part of the Transferred Contracts without Purchaser’s prior written consent, not to be unreasonably withheld or delayed, provided that Purchaser shall have the right to consent to the renewal of the General Electric contract and to a new contract with Nxtranet only if the proposed pricing and terms are less favorable than the existing arrangement/MOU in place in any material respect; (v) with respect to any Transferred Employee, increase in any manner the rate of compensation of any of its officers or other employees employed or retained in connection with the Business; (vi) enter into in connection with the Business or amend the Transferred Assets (i) create, incur or assume any agreement, contract or other arrangement Debt (or series including obligations in respect of related agreements, contracts or other arrangementscapital leases) by which the Subsidiaries or any Debt for money borrowed (whether long-term or short-term); (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligation of their properties any other Person; or assets are bound which has an aggregate future liability (iii) make any loans, advances or receivable capital contributions to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000other Person; (vii) purchase enter into any private label credit card portfolio compromise or settlement of any litigation, action, suit, claim, proceeding or investigation relating to the Transferred Assets or Assumed Liabilities, except settlements made in the ordinary course of business or by insurers, involving a purchase price amounts not in excess of $10,000,00010,000; (viii) make any change in its accounts receivable collection practices or accounts payable practices except consistent with past practice; or (viiiix) agree, whether in writing or otherwise, agree to do any of the foregoingthings described in the preceding clauses (i)-(viii).

Ordinary Conduct. (a) Except as for matters set forth on in Schedule 4.2 7.2 or otherwise expressly permitted or required by the terms of this Agreement, from the date hereof of this Agreement to the Closing, Parent and Seller shall (i) cause conduct the business of the Subsidiaries and their subsidiaries to be conducted Business in the usual, regular and ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices practice and use all commercially reasonable efforts to keep intact the Business, and preserve their the relationships of the Business with customers customers, suppliers, licensors, licensees, distributors, resellers and others with whom the Subsidiaries deal Business deals to the end that the Business and the goodwill of the Business shall be unimpaired at the Closing. Prior to the Closing, Parent and Seller shall not take any action that would, or that could reasonably be expected to, result in any of the conditions set forth in Article IV not being satisfied. In addition (ii) maintain in effect all insurance as and without limiting the generality of the foregoing), during such period prior to which the Subsidiaries and their subsidiaries are beneficiariesClosing, including any directors and officer insurance. Except except as set forth on in Schedule 4.2 7.2 or otherwise expressly permitted by the terms of this Agreement, from Parent and Seller shall not in each case insofar as the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall do any of the following without the written consent of Purchaser (which consent will not be unreasonably withheld):Business is concerned: (i) amend their any certificate of incorporation or incorporation, by-laws or other similar documentsgoverning instrument of any Subsidiary the equity or other ownership interests of which are included in the Acquired Assets; (ii) except for payments incur or assume any liabilities, obligations or indebtedness or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Sellerbusiness and consistent with past practice; (iii) redeem (A) acquire or otherwise acquire any shares of their capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, company, partnership, limited liability company, trust, joint venture, business association or other business organization or division thereof or otherwise acquire any assets that are material, material (individually or in the aggregate, ) to the Subsidiaries Business or their subsidiaries(B) make or incur or commit to make or incur any capital expenditure; (iv) enter into any lease of real property or any renewal of an existing lease of real property that may constitute Leased Real Property; (v) pay, discharge, modify or satisfy any claims, liabilities or obligations (whether accrued, absolute, contingent, asserted or otherwise) outside of the ordinary course of business consistent with past practice; (vi) make loans, advances or capital contributions to, or investments in, any other person; (vii) enter into, extend or renew (A) any Contract or amendment thereof (1) which contains any provision listed in Section 5.7, (2) which contains any other provision listed in Section 5.7 unless such Contract or amendment is necessary to operate the Business as it was operated in the ordinary course consistent with past practice immediately prior to the date of this Agreement or (3) which restricts the ability of the Business to own, operate, sell, lease transfer, pledge or otherwise dispose of or encumber any Acquired Asset, (B) any Contract or amendment thereof that grants any party the right or ability to access, license or use all or a material portion of their assets that are materialthe Acquired Intellectual Property of, (C) any Contract providing for the services of any dealer, distributor, sales representative, or similar representative, or (D) any other Contract, other than, in the case of clauses (C) or (D), in the ordinary course of business consistent with past practice with a term not in excess of one year; or accelerate, terminate, modify, waive, relinquish, assign or cancel any material (individually or in the aggregate, to ) Contract; (viii) engage in any other transaction involving the Subsidiaries Business or their subsidiaries, except the Acquired Assets other than in the ordinary course of businessbusiness consistent with past practice; (viix) enter into settle or amend compromise (A) any agreement, contract suit or other arrangement (or series of related agreements, contracts or other arrangements) by which claim relating to the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable transactions contemplated by the SubsidiariesTransaction Agreements or threatened suit or claim relating to the transactions contemplated by the Transaction Agreements or (B) other than any such litigation set forth on Schedule 5.8, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000any material litigation or material threatened litigation; (viix) purchase accelerate the billing or collection or other realization of cash or Excluded Assets from the Acquired Assets or accelerate the provision of goods and services of the Business or delay the payment of liabilities which would become Assumed Liabilities or grant any private label credit card portfolio involving allowance or discount, in each case outside the ordinary course of business consistent with past practice; (xi) write down any of its material assets, including any Acquired Intellectual Property, or make any change in any accounting principal, method or practice (financial, Tax or otherwise) other than those required by GAAP or applicable law; (xii) take any action or fail to take any action which would result in the material loss or reduction in value of the Acquired Intellectual Property, taken as a purchase price whole; (xiii) take any action that would or that could reasonably be expected to result in excess (A) any representation and warranty of $10,000,000Parent or Seller set forth in this Agreement that is qualified as to materiality becoming untrue, (B) any such representation and warranty that is not so qualified becoming untrue in any material respect or (C) any condition to the transactions contemplated hereby and set forth in Section 4.1 not being satisfied; or (viiixiv) agreeauthorize any of, or commit or agree to take, whether in writing or otherwise, to do any of of, the foregoingforegoing actions.

Ordinary Conduct. Except as set forth on Schedule 4.2 or otherwise permitted by the terms of this Agreement, from From the date hereof to until the Closingrelevant Closing Date, Seller shall (i) will cause the business operation of the Subsidiaries and their subsidiaries relevant Assets to be conducted in the ordinary course in substantially of business of Seller consistent with the same manner as presently conducted past practice and shall make all custom of Seller ("Ordinary Course of Business"), and will maintain reasonable efforts business and accounting records regarding the relevant Assets and Assumed Liabilities consistent with past practices to preserve their relationships with customers and others with whom practices; provided, however, that, following the Subsidiaries deal and (ii) maintain in effect all insurance as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as set forth on Schedule 4.2 or otherwise permitted by the terms date of this Agreement, Seller may delete or otherwise remove all data and all software, computer programs and similar technology from all computers, servers, data storage and data processing equipment, and other hardware or equipment that constitutes Tangible Personal Property (whether or not related to or necessary to Seller, its affiliates, or their respective businesses, operations, activities, practices, assets and/or liabilities, and whether or not owned, used or licensed by Seller, its affiliates or their respective customers, clients or employees, including in connection with the Business). Without limiting the generality of the foregoing, Seller shall use reasonable efforts to cause the Reg T/Reg U Loans not previously rejected by Buyer pursuant to Section 0, to be collateralized in accordance with Seller's minimum standards therefor and otherwise in accordance with Seller's customary and ordinary business practices with respect thereto at all times up to the relevant Closing. In addition, except as otherwise expressly required or contemplated by this Agreement, Seller will not, during the period beginning on the date hereof until and ending on the Closingrelevant Closing therefor, neither of the Subsidiaries or their subsidiaries shall do any of the following with respect to the Assets or Assumed Liabilities to be assigned or assumed at the relevant Closing without the prior written consent of Purchaser Buyer (which consent will shall not be unreasonably withheldwithheld or delayed): (a) other than retention agreements not extending past the relevant Closing Date, amend (other than by its terms) any employment, consulting, severance or similar agreements with any Employee, or grant any salary or wage increase or increase any benefit (including incentive or bonus payments) to any such Employee, except (i) amend their certificate for any changes that are required by law, (ii) to satisfy pre-existing contractual obligations, or (iii) for payment of incorporation any special or byone-laws time incentive, commission or similar documentsbonus payment payable by Seller or its affiliates in connection with the transactions contemplated hereby and which shall not otherwise become an Assumed Liability of Buyer; (iib) except for payments grant any mortgage, pledge, lien, or encumbrance, other than Permitted Liens, that will survive the relevant Closing on any of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of SellerAssets; (iiic) redeem or otherwise acquire any shares of their capital stock or issue any capital stock or any optionexcept as set forth below in this Section 6.2, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiaries; (v) sell, lease transfer, or otherwise dispose of any of their assets that are material, individually or Assets other than in the aggregate, to the Subsidiaries or their subsidiaries, except in the ordinary course Ordinary Course of businessBusiness; (vid) enter into except as set forth below in this Section 6.2, terminate any material contracts or amend or modify in any agreement, contract or other arrangement (or series of related agreements, contracts or other arrangements) by which the Subsidiaries or material respect any of their properties its existing material contracts to be included in the Assets assigned to Buyer, other than in the Ordinary Course of Business; (e) make any change in accounting methods or assets are bound which has an aggregate future liability principles applicable to the Business, except as required by changes in relevant GAAP; (f) incur or receivable to assume any person indebtedness for borrowed money or make any commitment for any capital expenditure that would increase the Assumed Liabilities, in excess of $1,000,000 50,000 in any individual case, or is not terminable by $250,000 in the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000aggregate; (viig) pay, discharge, settle, compromise or satisfy or agree to pay, discharge, settle, compromise or satisfy, any material claim relating to the Assets or Assumed Liabilities that would materially increase the amount of the Assumed Liabilities; (h) except as contemplated below in this Section 6.2, transfer any Employees, Customers, Assets or Tangible Personal Property from Acquired Locations to Seller's operations or branches that are not Acquired Locations; (i) make any loan or advance to any customer of the Business that would become an Asset or Assumed Liability, other than loans or advances in the Ordinary Course of Business; (j) except as set forth below in this Section 6.2, enter into any leases for real estate or purchase any private label credit card portfolio involving a purchase price in excess of $10,000,000real estate relating to the Business that would become an Asset or Assumed Liability; or (viiik) agreeagree or commit, whether in writing or otherwise, to do any of the foregoing. Notwithstanding anything to the contrary in this Section 6.2, nothing shall limit or restrict Seller from (i) terminating any month to month tenancies under Real Estate Leases; provided, however, that written notice of such termination is provided to Buyer, such notice to be in advance of such action to the extent reasonably practicable, or (ii) permitting to expire or electing not to renew or extend any Real Estate Leases that will expire or be eligible for renewal or extension prior to the relevant Closing Date; provided, however, that written notice of such expiration or non-renewal is provided to Buyer, such notice to be in advance of such action to the extent reasonably practicable, or (iii) terminating any Real Estate Leases eligible for termination prior to the relevant Closing Date; provided, however, that written notice of such termination is provided to Buyer, such notice to be in advance of such action to the extent reasonably practicable, or (iv) renewing or extending any Real Estate Leases that will expire or become eligible for renewal or extension prior to the relevant Closing Date; provided, however, that written notice of such renewal or extension is provided to Buyer, such notice to be in advance of such action to the extent reasonably practicable, or (v) transferring Excluded Assets, Excluded Liabilities, Excluded Employees, Excluded Customers or Excluded Branch Assets from any Partially Acquired Location to an Excluded Location or a non-Business Location, or (vi) taking any actions with respect to assets and liabilities associated with Excluded Locations, including transferring Employees from or closing such Excluded Locations at any time after the Excluded Location Notice Date, (vii) taking any other actions with respect to Excluded Assets, Excluded Liabilities, Excluded Locations, Excluded Employees, Excluded Customers or Excluded Branch Assets, or (viii) settling, discharging, terminating or paying claims, entitlements or rights that Employees may have with respect to compensation and/or benefits under the Seller's Plans or any other benefits plans, policies, or programs maintained by Seller of its affiliates.

Ordinary Conduct. Except as set forth on Schedule 4.2 or otherwise expressly permitted by the terms of this Agreement, from the date hereof to the Closing, the Company shall conduct the Business (and Seller shall (i) cause the business of Company to conduct the Subsidiaries and their subsidiaries to be conducted Business) in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve their his and the Company’s relationships with customers customers, suppliers, dealers and others with whom they deal. Seller shall not, and shall cause the Subsidiaries deal and Company not to, take any action that would, or that reasonably could be expected to (i) result in any of the conditions set forth in Article X not being satisfied or (ii) maintain result in effect all insurance any of the representations or warranties of Seller or the Company becoming untrue. In addition, except as to which the Subsidiaries and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as set forth on Schedule 4.2 or otherwise expressly permitted by the terms of this Agreement, from the date hereof until Company shall not, and Seller shall not cause or permit the ClosingCompany to, neither of the Subsidiaries or their subsidiaries shall do any of the following without the express prior written consent of Purchaser (which consent will not be unreasonably withheld):Parent: (ia) amend their certificate of incorporation or by-laws or similar documentsits Organizational Documents; (iib) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders Seller whether or not upon or in respect of any shares the Membership Interests of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of SellerCompany; (iiic) redeem or otherwise acquire any shares the Membership Interests of their capital stock the Company or Capital Stock or issue any capital stock same or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stocktherefor; (ivd) adopt or amend any collective bargaining agreement; (e) establish, adopt, or enter into any Employee Benefit Plan or any similar agreement or amend or take any other actions, including acceleration of vesting and waiver of performance criteria, with respect to any Employee Benefit Plan or any similar agreement; (f) increase the compensation payable or to become payable to any manager, officer or employee of the Company; (g) hire or fire any employees, consultants or other personnel; (h) grant any severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or employee of the Company, either individually or as part of a class of similarly situated persons; (i) incur or assume any liabilities, obligations or indebtedness for borrowed money or guarantee any such liabilities, obligations or indebtedness; (j) deviate from the Company’s historical practices with respect to the incurrence and payment of payables or accrual and collection of receivables or otherwise pay or satisfy any liabilities, obligations or indebtedness other than in the ordinary course of business consistent with past practice; (k) permit, allow or suffer any of its assets to become subjected to any Lien; (l) cancel any indebtedness (individually or in the aggregate) or waive any Claims; (m) pay, loan or advance any amount to, or sell, transfer or lease any of its assets to, or enter into any Contract or arrangement with, Seller or any of his Affiliates; (n) make any change in any method of accounting or accounting practice or policy other than those required by GAAP; (o) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization person or division thereof or otherwise acquire any assets that which are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesCompany; (vp) sell, lease or otherwise dispose of any assets of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesCompany, except in the ordinary course of businessbusiness consistent with past practice; (viq) enter into any lease of real property; (r) initiate any proceeding before any Governmental Authority; (s) make, revoke or amend any agreementmaterial Tax election, contract change any material method of Tax accounting or other arrangement (material Tax procedure or series of related agreementspractice, contracts or other arrangements) by which the Subsidiaries settle or compromise any of their properties or assets are bound which has an aggregate future liability or receivable material claim relating to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000Taxes; (viit) purchase enter into any private label credit card portfolio involving Contract that would constitute a purchase price in excess of $10,000,000Material Contract or amend, terminate, alter or waive performance under any Material Contract; or (viiiu) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. Except as will be set forth on in Schedule 4.2 5(b) ----------------- or otherwise expressly permitted by the terms of this Agreement, from the date hereof to the Closing, Seller shall (i) cause the business of the Subsidiaries and their subsidiaries Business to be conducted in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve their relationships with customers customers, suppliers, joint venture partners and others with whom the Subsidiaries deal Company deals. Seller shall not, and (ii) maintain shall not permit the Company to, take any action that would, or that could reasonably be expected to, result in effect all insurance as any of the conditions to which the Subsidiaries purchase and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as sale of the Shares set forth on in Section 3(a) not being satisfied. In addition, except as will be set forth in Schedule 4.2 5(b) or otherwise expressly permitted by the terms of this Agreement, from Seller shall not permit the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall Company to do any of the following without the prior written consent of Purchaser (which consent will not be unreasonably withheld):Buyer: (i) amend their certificate its Certificate of incorporation Incorporation or byBy-laws or similar documentslaws; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their its stockholders whether or not upon or in respect of any shares of their its capital stock except for other than cash dividends necessary or in connection with the transfer to pay any required tax payments by Seller or any required payments on an affiliate of Seller (other than the indebtedness Company) of Sellerthe Excluded Assets; (iii) redeem or otherwise acquire any shares of their its capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) adopt or amend in any material respect any Benefit Plan or collective bargaining agreement, except as required by law (including Tax qualification requirements); (v) grant to any executive officer or employee engaged in the conduct of the Business any increase in compensation or benefits, except in the ordinary course of business consistent with past practice, as required by Section 5(j) or as may be required under existing agreements and except for any increases for which Seller shall be solely obligated; (vi) except as related to the Excluded Assets and for which the Company is fully indemnified, incur or 39 assume any liabilities, obligations or indebtedness for borrowed money or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business consistent with past practice; provided -------- that in no event shall the Company incur, assume or guarantee any long-term indebtedness for borrowed money; (vii) permit, allow or suffer any of its assets (other than the Excluded Assets) to become subjected to any mortgage, lien, security interest, encumbrance, easement, covenant, right-of-way or other similar restriction of any nature whatsoever which would have been required to be set forth in Schedule 4(i) or 4(j) if existing on the date of this Agreement; (viii) cancel any material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value; (ix) except for the transfer to Seller or an affiliate of Seller (other than the Company) of the Excluded Assets and intercompany transactions in the ordinary course of business, pay, loan or advance any amount to, or sell, transfer or lease any of its assets to, or enter into any agreement or arrangement with, Seller or any of its affiliates; (x) make any change in any method of accounting or accounting practice or policy other than those required by generally accepted accounting principles; (xi) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that (other than inventory) which are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesCompany; (vxii) except for any capital expenditure that is currently approved in writing or budgeted or required by an emergency, make or incur any capital expenditure which, individually, is in excess of $50,000 or make or incur any such expenditures which, in the aggregate, are in excess of $500,000; (xiii) sell, lease or otherwise dispose of any of their its assets that (other than the Excluded Assets) which are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesCompany, except in the ordinary course of businessbusiness consistent with past practice; provided that in no event shall the Company -------- sell, lease, encumber or otherwise dispose of any Facility or its interest in any Facility; (vixiv) acquire (whether by purchase, lease, exchange or otherwise) any additional Facilities or any interest in any additional Facilities; (xv) enter into or amend any agreementlease of real property, contract or other arrangement (or series except any renewals of related agreements, contracts or other arrangements) by existing leases in the ordinary course of business with respect to which Buyer shall have the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable right to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000participate; (viixvi) purchase modify, amend, terminate or permit the lapse of any private label credit card portfolio involving lease of, or reciprocal easement agreement, operating agreement or other material agreement relating to, real property (except modifications or amendments associated with renewals of existing leases in the ordinary course of business with respect to which Buyer shall have the right to participate); (xvii) modify, amend or terminate the BP Relationship or any other joint venture agreement or arrangement or any other Contract which is material to the Business; (xviii) alter in any material respect any aspects of its petroleum products trading activities and practices, including in respect of the manner in which, and the volumes on which, such activities and practices are conducted; (xix) grant any powers of attorney of the Company to any person; (xx) (A) make or rescind any express or deemed election relating to Taxes if such action would create a purchase price material additional liability for the Company in excess respect of $10,000,000any period beginning after the Closing Date or (B) except as may be required by applicable law, change in any respect any of its methods of reporting income or deductions for income tax purposes from those employed in the preparation of its income tax returns for the taxable year ended May 31, 1998 if such change would create a material additional liability for the Company in respect of any period beginning after the Closing Date; or (viiixxi) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. Except as set forth on in Schedule 4.2 5(b) or otherwise expressly permitted by the terms of this Agreement, from the date hereof to the Closing, Seller shall (i) cause the business of the Subsidiaries and their subsidiaries Company to be conducted in the ordinary course in substantially the same manner as presently currently conducted and shall make all reasonable efforts consistent with past practices to preserve their relationships with customers customers, employees and others with whom the Subsidiaries deal Company deals; provided that Seller shall not be obligated to, directly or indirectly, provide any funds to the Company other than in the ordinary course of business. Seller shall not, and (ii) maintain shall not permit the Company to, take any action that would, or that could reasonably be expected to, result in effect all insurance as any of the conditions to which the Subsidiaries and their subsidiaries are beneficiariesClosing set forth in this Agreement not being satisfied. In addition, including any directors and officer insurance. Except except as set forth on in Schedule 4.2 5(b) or otherwise expressly permitted by the terms of this Agreement, from Seller shall not permit the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall Company to do any of the following without the written prior consent of Purchaser (which consent will not be unreasonably withheld):Buyer: (i) amend their certificate its Certificate of incorporation Incorporation or by-laws or similar documentsBylaws; (ii) adopt or amend any Employee Plan or collective bargaining agreement, except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare as required by law or pay any dividend or make any other distribution to their stockholders whether or not upon or elsewhere in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Sellerthis Agreement; (iii) redeem grant to any employee executive officer any increase in compensation or otherwise acquire any shares benefits, except in the ordinary course of their capital stock business consistent with past practice or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable as may be required under existing agreements and except for any shares of capital stockincreases for which Seller shall be solely obligated; (iv) incur or assume any liabilities, obligations or indebtedness for borrowed money or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business consistent with past practice; provided that in no event shall the Company incur, assume or guarantee any long-term indebtedness for borrowed money; (v) make any change in any method of accounting or accounting practice or policy other than those required by US GAAP; (vi) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that (other than inventory) which are material, individually or in the aggregate, material to the Subsidiaries or their subsidiariesCompany; (vvii) sell, lease or otherwise dispose of any of their assets that are materialits assets, individually or except in the aggregateordinary course of business consistent with past practice; (viii) enter into any contract, to the Subsidiaries agreement or their subsidiariesother arrangement, written or oral, or modify or terminate any existing contract, agreement or other arrangement, except in the ordinary course of business; (viix) issue or sell any equity interests or enter into or amend any agreement, contract or other arrangement (or series agreement relating to the equity interests of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000; (vii) purchase any private label credit card portfolio involving a purchase price in excess of $10,000,000Company; or (viiix) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. Except as will be set forth on in Schedule 4.2 5(b) or otherwise expressly permitted by the terms of this Agreement, from the date hereof to the Closing, Seller shall (i) cause the business of the Subsidiaries and their subsidiaries Business to be conducted in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve their relationships with customers customers, suppliers, joint venture partners and others with whom the Subsidiaries deal Company deals. Seller shall not, and (ii) maintain shall not permit the Company to, take any action that would, or that could reasonably be expected to, result in effect all insurance as any of the conditions to which the Subsidiaries purchase and their subsidiaries are beneficiaries, including any directors and officer insurance. Except as sale of the Shares set forth on in Section 3(a) not being satisfied. In addition, except as will be set forth in Schedule 4.2 5(b) or 39 34 otherwise expressly permitted by the terms of this Agreement, from Seller shall not permit the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall Company to do any of the following without the prior written consent of Purchaser (which consent will not be unreasonably withheld):Buyer: (i) amend their certificate its Certificate of incorporation Incorporation or byBy-laws or similar documentslaws; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their its stockholders whether or not upon or in respect of any shares of their its capital stock except for other than cash dividends necessary or in connection with the transfer to pay any required tax payments by Seller or any required payments on an affiliate of Seller (other than the indebtedness Company) of Sellerthe Excluded Assets; (iii) redeem or otherwise acquire any shares of their its capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) adopt or amend in any material respect any Benefit Plan or collective bargaining agreement, except as required by law (including Tax qualification requirements); (v) grant to any executive officer or employee engaged in the conduct of the Business any increase in compensation or benefits, except in the ordinary course of business consistent with past practice, as required by Section 5(j) or as may be required under existing agreements and except for any increases for which Seller shall be solely obligated; (vi) except as related to the Excluded Assets and for which the Company is fully indemnified, incur or assume any liabilities, obligations or indebtedness for borrowed money or guarantee any such liabilities, obligations or indebtedness, other than in the ordinary course of business consistent with past practice; provided that in no event shall the Company incur, assume or guarantee any long-term indebtedness for borrowed money; (vii) permit, allow or suffer any of its assets (other than the Excluded Assets) to become subjected to any mortgage, lien, security interest, encumbrance, easement, covenant, right-of-way or other similar restriction of any nature whatsoever which would have been required to be set forth in Schedule 4(i) or 4(j) if existing on the date of this Agreement; 40 35 (viii) cancel any material indebtedness (individually or in the aggregate) or waive any claims or rights of substantial value; (ix) except for the transfer to Seller or an affiliate of Seller (other than the Company) of the Excluded Assets and intercompany transactions in the ordinary course of business, pay, loan or advance any amount to, or sell, transfer or lease any of its assets to, or enter into any agreement or arrangement with, Seller or any of its affiliates; (x) make any change in any method of accounting or accounting practice or policy other than those required by generally accepted accounting principles; (xi) acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that (other than inventory) which are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesCompany; (vxii) except for any capital expenditure that is currently approved in writing or budgeted or required by an emergency, make or incur any capital expenditure which, individually, is in excess of $50,000 or make or incur any such expenditures which, in the aggregate, are in excess of $500,000; (xiii) sell, lease or otherwise dispose of any of their its assets that (other than the Excluded Assets) which are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesCompany, except in the ordinary course of businessbusiness consistent with past practice; provided that in no event shall the Company sell, lease, encumber or otherwise dispose of any Facility or its interest in any Facility; (vixiv) acquire (whether by purchase, lease, exchange or otherwise) any additional Facilities or any interest in any additional Facilities; (xv) enter into or amend any agreementlease of real property, contract or other arrangement (or series except any renewals of related agreements, contracts or other arrangements) by existing leases in the ordinary course of business with respect to which Buyer shall have the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable right to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000participate; (viixvi) purchase modify, amend, terminate or permit the lapse of any private label credit card portfolio involving lease of, or reciprocal easement agreement, 41 36 operating agreement or other material agreement relating to, real property (except modifications or amendments associated with renewals of existing leases in the ordinary course of business with respect to which Buyer shall have the right to participate); (xvii) modify, amend or terminate the BP Relationship or any other joint venture agreement or arrangement or any other Contract which is material to the Business; (xviii) alter in any material respect any aspects of its petroleum products trading activities and practices, including in respect of the manner in which, and the volumes on which, such activities and practices are conducted; (xix) grant any powers of attorney of the Company to any person; (xx) (A) make or rescind any express or deemed election relating to Taxes if such action would create a purchase price material additional liability for the Company in excess respect of $10,000,000any period beginning after the Closing Date or (B) except as may be required by applicable law, change in any respect any of its methods of reporting income or deductions for income tax purposes from those employed in the preparation of its income tax returns for the taxable year ended May 31, 1998 if such change would create a material additional liability for the Company in respect of any period beginning after the Closing Date; or (viiixxi) agree, whether in writing or otherwise, to do any of the foregoing.

Ordinary Conduct. Except as set forth on in Schedule 4.2 or otherwise permitted by the terms of this Agreement5(b), from the date hereof of this Agreement to the Closing, Seller shall (i) cause the business of the Subsidiaries and their subsidiaries Company to be conducted in the ordinary course in substantially the same manner as presently conducted and shall make all reasonable efforts consistent with past practices to preserve their the Company’s relationships with customers customers, suppliers and others with whom the Subsidiaries deal Company deals and (iito keep its business and properties substantially intact. Seller shall not, and shall not permit the Company to, take any action that will, or that could reasonably be expected to, result in any of the conditions to the Acquisition set forth in Section 3(a) not being satisfied. In furtherance of but not in limitation of the foregoing, prior to the Closing, Seller shall cause the Company to comply with all Laws applicable to the Company, fulfill its obligations under its Contracts and maintain insurance relating to the business as in effect all insurance as to which on the Subsidiaries and their subsidiaries are beneficiariesdate hereof. In addition, including any directors and officer insurance. Except except as set forth on in Schedule 4.2 5(b) or otherwise expressly permitted by the terms of this Agreement, from Seller shall not permit the date hereof until the Closing, neither of the Subsidiaries or their subsidiaries shall Company to do any of the following without the prior written consent of Purchaser (Buyer, which consent will not be unreasonably withheld):: (i) amend their its certificate of incorporation or by-laws or similar documentsbylaws; (ii) except for payments of all amounts necessary to satisfy Section 7.2(iv) hereof, declare or pay any dividend or make any other distribution to their stockholders whether or not upon or in respect of any shares of their capital stock except for dividends necessary to pay any required tax payments by Seller or any required payments on the indebtedness of Seller; (iii) redeem or otherwise acquire any shares of their its capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iii) adopt or amend in any material respect any Benefit Plan of the Company, except as required by applicable Law; (iv) acquire by merging grant to any executive officer or consolidating with, or by purchasing a substantial portion employee of the assets ofCompany any material increase in compensation or benefits, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof or otherwise acquire any assets that are material, individually or except in the aggregate, to the Subsidiaries ordinary course of business consistent with past practice or their subsidiariesas may be required under existing agreements and except for any increases for which Seller shall be solely obligated; (v) incur or assume any liabilities, obligations or indebtedness for borrowed money or guarantee any such liabilities, obligations or indebtedness; (vi) grant any Lien other than a Permitted Lien; (vii) except for intercompany transactions in the ordinary course of business (including the transfer of all Company cash to Seller) and payments under any tax sharing agreement, pay, loan or advance any amount to, or sell, transfer or lease any of its assets to, or enter into any agreement or arrangement with, Seller or any of its affiliates; (viii) make any change in any method of accounting or accounting practice or policy other than those required under applicable accounting principles; (ix) sell, lease, assign, transfer or otherwise dispose of any of their assets that are material, individually or in the aggregate, to the Subsidiaries or their subsidiariesits assets, except in the ordinary course of business; (vix) except as otherwise permitted in this Section 5(b) above, enter into or amend any agreement, contract or other arrangement (or series material Contract outside the ordinary course of related agreements, contracts or other arrangements) by which the Subsidiaries or any of their properties or assets are bound which has an aggregate future liability or receivable to any person in excess of $1,000,000 or is not terminable by the Subsidiaries, as the case may be, by notice of not more than 60 days for an aggregate cost of less than $1,000,000business; (viixi) purchase make any private label credit card portfolio involving a purchase price material Tax election or change in excess any material Tax practice; (xii) demolish or make any material alteration to any Real Property; (xiii) acquire any equity interest in any person or any material property, other than acquisitions of $10,000,000raw materials and equipment in the ordinary course of business; (xiv) except in the ordinary course of business, modify, extend, renew, amend or terminate, or grant any waiver or exercise any right or option under any material Contract; or (viiixv) agree, whether in writing or otherwise, to do any of the foregoing.