Common use of PRE-CLOSING COVENANTS Clause in Contracts

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE shall use commercially reasonable efforts to (and to cause each of the SPE Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REIT: (a) (i) declare, set aside or pay any distributions in respect of any of the SPE LLC Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE Contributor shall use commercially reasonable efforts to (and to shall cause each of the SPE Subsidiaries Contributed Entities to) conduct its businesses and operate and maintain the Contributed Properties in the ordinary course of business consistent with past practice practice, pay its debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE Contributor shall not (and shall not permit any of the SPE Subsidiaries Contributed Entities to) without the prior written consent of the REIT, which consent may be withheld by the REIT in its sole discretion: (a) (i) other than distributions to the members of the Contributor in connection with such members’ payment of any Taxes related to their ownership of the membership interest of the Contributor or as otherwise contemplated by this Agreement, declare, set aside or pay any dividends or distributions in respect of any of the SPE LLC Contributed Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreementapplicable governing document of the Contributor, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Contributed Interests or make any other changes to the equity capital structure of the SPE Contributor or any SPE Subsidiarythe Contributed Entities, or (iii) purchase, redeem or otherwise acquire any SPE LLC Contributed Interests or member interests of any of the SPE Subsidiaries Contributed Entities or any other securities thereof; (b) other than in accordance with Section 4.08(a), issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries Contributor or of the Contributed Entities or any other assets of the SPE Contributor or SPE Subsidiariesthe Contributed Entities; (c) amend, modify or terminate any lease, contract or other instruments relating to the a Contributed Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreementand limited liability company agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE the Contributor’s or SPE Subsidiary’s the Contributed Entities’ books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE Contributor or any of its Subsidiaries Contributed Entity as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax returnReturn; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the any Contributed Property that results in a material reduction in insurance coverage for the such Contributed Property; (i) knowingly cause or permit the SPE Contributor or any Contributed Entity to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; (j) take any action or fail to take any action the result of which would have a Fund Material Adverse Effect; or (jk) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), Provident shall cause the SPE shall Contributed Entity to use commercially reasonable efforts to (and to cause each of the SPE Subsidiaries to) conduct its businesses business and operate and maintain the Properties in the ordinary course of business consistent with past practice practice, pay its obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers suppliers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE shall not (and Provident shall not permit any of the SPE Subsidiaries to) Contributed Entity without the prior written consent of the REIT, which consent may be withheld by the REIT in its sole discretion: (a) to (i) declare, set aside or pay any dividends or distributions in respect of any without the written consent of the SPE LLC InterestsREIT, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreementwhich shall not be unreasonably withheld, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, Contributed Entity or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any securities of the SPE Subsidiaries or any other securities thereofContributed Entity; (b) to issue, deliver, sell, sell transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise other encumbrance of, any limited liability company, partnership interests company or other equity interests in the SPE Contributed Entity or any Subsidiary of the SPE Subsidiaries Contributed Entity or any other assets of the SPE or SPE SubsidiariesContributed Entity; (c) to amend, modify or terminate any lease, contract or other instruments relating to the PropertyProperties, except in the ordinary course of business consistent with past practice; (d) to amend its certificate of formation or the SPE LLC Member Control Agreement; (e) to adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) to materially alter the manner of keeping such SPE or SPE Subsidiarythe Contributed Entity’s books, accounts or records or the accounting practices therein reflected; (g) to file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries Contributed Entity as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax Tax allocation agreement, tax Tax sharing agreement, tax Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) to terminate or amend any existing insurance policies affecting the Property Properties that results in a material reduction in insurance coverage for the PropertyProperties; (i) to knowingly cause or permit the SPE Contributed Entity to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) to authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE Management Company shall use commercially reasonable efforts to (and to cause each of the SPE Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice practice, pay its debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE Management Company shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REITOperating Partnership, which consent may be withheld by the Operating Partnership in its sole discretion: (a) (i) other than distributions to the members of the Management Company in connection with such members’ payment of any Taxes related to their ownership of the membership interest of the Management Company or as otherwise contemplated by this Agreement, declare, set aside or pay any dividends or distributions in respect of any of the SPE LLC Management Company Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreementapplicable governing document of the Management Company, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Management Company Interests or make any other changes to the equity capital structure of the SPE or any SPE SubsidiaryManagement Company, or (iii) purchase, redeem or otherwise acquire any SPE LLC Management Company Interests or member interests of any of the SPE Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries Management Company or any other assets of the SPE or SPE SubsidiariesManagement Company; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreementand limited liability company agreement; (ed) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (fe) materially alter the manner of keeping such SPE or SPE Subsidiarythe Management Company’s books, accounts or records or the accounting practices therein reflected; (gf) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries Management Company as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax returnReturn; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (ig) knowingly cause or permit the SPE Management Company to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; (h) take any action or fail to take any action the result of which would have a Management Company Material Adverse Effect; or (ji) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. (a) During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE Contributor shall use commercially reasonable efforts to (and to shall cause each of the SPE Subsidiaries Contributed Entities to) conduct its businesses and operate and maintain the Contributed Properties in the ordinary course of business consistent with past practice practice, pay debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customerslenders, tenants, suppliers, advertisers suppliers and others having business dealings with it, in each case consistent with past practice. In addition, and without . (b) Without limiting the generality of the foregoingparagraph (a) above, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactionsas otherwise permitted herein, the SPE Contributor shall not (and shall not permit any of the SPE Subsidiaries Contributed Entities to) without the prior written consent of the REIT, which consent may be withheld by the REIT in its sole discretion: (ai) (i) declare, set aside or pay any distributions in respect of any of the SPE LLC Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Contributed Interests or make any other changes to the equity capital structure of the SPE Contributor or any SPE Subsidiarythe Contributed Entities, or (iiiii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereofContributed Interests; (bc) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, company or partnership interests or other equity interests in of the SPE Contributor or of the Contributed Entities, the Contributed Properties or any of the SPE Subsidiaries Contributed Assets or any other assets of the SPE Contributor or SPE Subsidiariesthe Contributed Entities; (cd) amend, modify or terminate any lease, contract or other instruments relating to the a Contributed Property, except in the ordinary course of business consistent with past practice; (de) take or omit to take any action to cause any Lien to attach to any Contributed Property, except for Permitted Liens; (f) amend its certificate of formation or the SPE LLC Agreementand limited liability company agreement; (eg) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (fh) materially alter the manner of keeping such SPE the Contributor’s or SPE Subsidiary’s the Contributed Entities’ books, accounts or records or the accounting practices therein reflected; (gi) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE Contributor, any Contributed Entity or any of its Subsidiaries Property Entity as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax returnReturn; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (hj) terminate or amend any existing insurance policies affecting the any Contributed Property that results in a material reduction in insurance coverage for the such Contributed Property; (ik) knowingly cause or permit the SPE Contributor, any Contributed Entity or Property Entity to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; (l) take any action or fail to take any action the result of which would have a Fund Material Adverse Effect; or (jm) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE RESI shall use commercially reasonable efforts to (and to cause each of the SPE Subsidiaries to) conduct its businesses business and operate and maintain the Properties in the ordinary course of business consistent with past practice practice, pay its obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers suppliers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE RESI shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REIT, which consent may be withheld by the REIT in its sole discretion: (a) (i) declare, set aside or pay any dividends or distributions in respect of any RESI Equity Interests without the written consent of the SPE LLC InterestsREIT, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreementwhich shall not be unreasonably withheld, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC RESI Equity Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, RESI or (iii) purchase, redeem or otherwise acquire any SPE LLC RESI Equity Interests or member interests of any of the SPE Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise other encumbrance of, any limited liability company, partnership interests company or other equity interests in the SPE RESI or any Subsidiary of the SPE Subsidiaries RESI or any other assets of the SPE or SPE SubsidiariesRESI; (c) amend, modify or terminate any lease, contract or other instruments relating to the PropertyProperties, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC AgreementOrganizational Documents; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE SubsidiaryRESI’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries RESI as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax Tax allocation agreement, tax Tax sharing agreement, tax Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property Properties that results in a material reduction in insurance coverage for the PropertyProperties; (i) knowingly cause or permit the SPE RESI to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE shall use commercially reasonable efforts to (and to shall cause each of the SPE Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice practice, pay its debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REITOperating Partnership, which consent may be withheld by the Operating Partnership in its sole discretion: (a) (i) other than distributions to the equity holders of the SPE in connection with such holders’ payment of any Taxes related to their ownership of the equity of the SPE or as otherwise contemplated by this Agreement, declare, set aside or pay any dividends or distributions in respect of any of the SPE LLC Equity Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC AgreementSPE’s applicable Organizational Documents, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Equity Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Equity Interests or member equity interests of any of the SPE Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or the SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC AgreementOrganizational Documents; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its SPE Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the any Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE RIF V Fund shall use commercially reasonable efforts to (and to shall cause each of the SPE its RIF V Fund Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice practice, pay its debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE RIF V Fund shall not (and shall not permit any of the SPE its RIF V Fund Subsidiaries to) without the prior written consent of the REITOperating Partnership, which consent may be withheld by the Operating Partnership in its sole discretion: (a) (i) other than distributions to the members of the RIF V Fund in connection with such members’ payment of any Taxes related to their ownership of the membership interest of the RIF V Fund or as otherwise contemplated by this Agreement, declare, set aside or pay any dividends or distributions in respect of any of the SPE LLC RIF V Fund Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreementapplicable governing document of the RIF V Fund, including distributions by RIF V Fund reasonably necessary to enable RIF V REIT to pay dividends to maintain its status as a real estate investment trust under the Code and avoid the imposition of any income Tax or excise Tax under the Code or any provision of state, local or foreign Tax law, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC RIF V Fund Interests or make any other changes to the equity capital structure of the SPE RIF V Fund or any SPE Subsidiaryits RIF V Fund Subsidiaries, or (iii) purchase, redeem or otherwise acquire any SPE LLC RIF V Fund Interests or member interests of any of the SPE its RIF V Fund Subsidiaries or any other securities thereof; (b) other than in accordance with Section 4.08(a), issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE RIF V Fund or of its RIF V Fund Subsidiaries or any other assets of the SPE RIF V Fund or SPE its RIF V Fund Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreementand limited liability company agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE the RIF V Fund’s or SPE Subsidiary’s its RIF V Fund Subsidiaries’ books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE RIF V Fund or any of its RIF V Fund Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax returnReturn; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the any Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE RIF V Fund or any of the RIF V Fund Subsidiaries to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; (j) take any action or fail to take any action the result of which would have a Fund Material Adverse Effect; or (jk) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE each Forward REIT Merger Entity shall use commercially reasonable efforts to (and to shall cause each of the SPE its Forward REIT Merger Entity Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice practice, pay its debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE each Forward REIT Merger Entity shall not (and shall not permit any of the SPE its Forward REIT Merger Entity Subsidiaries to) without the prior written consent of the REIT, which consent may be withheld by the REIT in its sole discretion: (a) (i) other than distributions to the shareholders of such Forward REIT Merger Entity in connection with such holders’ payment of any Taxes related to their ownership of the stock of the Forward REIT Merger Entity or as otherwise contemplated by this Agreement, declare, set aside or pay any dividends or distributions in respect of any of the SPE LLC Forward REIT Merger Entity Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreementapplicable governing document of such Forward REIT Merger Entity, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Forward REIT Merger Entity Interests or make any other changes to the equity capital structure of the SPE such Forward REIT Merger Entity or any SPE Subsidiaryits Forward REIT Merger Entity Subsidiaries, or (iii) purchase, redeem or otherwise acquire any SPE LLC Forward REIT Merger Entity Interests or member interests of any of the SPE its Forward REIT Merger Entity Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE of such Forward REIT Merger Entity or any of the SPE its Forward REIT Merger Entity Subsidiaries or any other assets of the SPE such Forward REIT Merger Entity or SPE its Forward REIT Merger Entity Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation formation, certificate of organization, limited partnership agreement, limited liability company agreement or the SPE LLC Agreementoperating agreement, as applicable; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE Forward REIT Merger Entity’s or SPE Subsidiary’s its Forward REIT Merger Entity Subsidiaries’ books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax electionselections (except that, if applicable, such Forward REIT Merger Entity may, without the consent of the REIT, (i) terminate its election to be taxed as an S corporation up to three days prior to the expected pricing of the IPO and (ii) cause any Forward REIT Merger Entity Subsidiary that is a qualified subchapter S subsidiary to convert or merge into a wholly-owned limited liability company subsidiary of such Forward REIT Merger Entity that is a disregarded entity for federal Tax purposes); settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the any Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE such Forward REIT Merger Entity to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE shall use commercially reasonable efforts to (and to shall cause each of the SPE Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice practice, pay its debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REIT, which consent may be withheld by the REIT in its sole discretion: (a) (i) other than distributions to the holders of SPE Equity Interests in connection with such holders’ payment of any Taxes related to their ownership of the equity of the SPE or as otherwise contemplated by this Agreement, declare, set aside or pay any dividends or distributions in respect of any of the SPE LLC Equity Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC AgreementSPE’s applicable Organizational Documents, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Equity Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Equity Interests or member equity interests of any of the SPE Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or the SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC AgreementOrganizational Documents; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax electionselections (except that, if applicable, the SPE may, without the consent of the REIT, (i) terminate its election, if applicable, to be taxed as an S corporation up to three days prior to the expected pricing of the IPO and (ii) cause any SPE Subsidiary that is a qualified subchapter S subsidiary to convert or merge into a wholly-owned limited liability company subsidiary of the SPE that is a disregarded entity for federal Tax purposes); settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the any Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE each Forward OP Merger Entity shall use commercially reasonable efforts to (and to shall cause each of the SPE its Forward OP Merger Entity Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice practice, pay its debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE each Forward OP Merger Entity shall not (and shall not permit any of the SPE its Forward OP Merger Entity Subsidiaries to) without the prior written consent of the REITOperating Partnership, which consent may be withheld by the Operating Partnership in its sole discretion: (a) (i) other than distributions to the equity holders of such Forward OP Merger Entity in connection with such holders’ payment of any Taxes related to their ownership of the equity of the Forward OP Merger Entity or as otherwise contemplated by this Agreement, declare, set aside or pay any distributions in respect of any of the SPE LLC Forward OP Merger Entity Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreementapplicable governing document of such Forward OP Merger Entity, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Forward OP Merger Entity Interests or make any other changes to the equity capital structure of the SPE such Forward OP Merger Entity or any SPE Subsidiaryits Forward OP Merger Entity Subsidiaries, or (iii) purchase, redeem or otherwise acquire any SPE LLC Forward OP Merger Entity Interests or member interests of any of the SPE its Forward OP Merger Entity Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE of such Forward OP Merger Entity or any of the SPE its Forward OP Merger Entity Subsidiaries or any other assets of the SPE such Forward OP Merger Entity or SPE its Forward OP Merger Entity Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation formation, certificate of organization, limited partnership agreement, limited liability company agreement or the SPE LLC Agreementoperating agreement, as applicable; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE Forward OP Merger Entity’s or SPE Subsidiary’s its Forward OP Merger Entity Subsidiaries’ books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE such Forward OP Merger Entity or any of its Forward OP Merger Entity Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the any Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE such Forward OP Merger Entity to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE RIF V REIT shall use commercially reasonable efforts to (and to shall cause each of the SPE its RIF V REIT Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice practice, pay its debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE RIF V REIT shall not (and shall not permit any of the SPE its RIF V REIT Subsidiaries to) without the prior written consent of the REIT, which consent may be withheld by the REIT in its sole discretion: (a) (i) declare, set aside or pay any dividends or distributions in respect of any of the SPE LLC RIF V REIT Interests, except (A) in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreementapplicable governing document of the RIF V REIT or (B) dividends or distributions, including under Sections 858 or 860 of the Code, reasonably necessary for the RIF V REIT to maintain its status as a real estate investment trust under the Code and avoid or reduce the imposition of any corporate level tax or excise Tax under the Code, including dividends or distributions described in Section 5.03(a), (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC RIF V REIT Interests or make any other changes to the equity capital structure of the SPE RIF V REIT or any SPE Subsidiaryits RIF V REIT Subsidiaries, or (iii) purchase, redeem or otherwise acquire any SPE LLC RIF V REIT Interests or member interests of any of the SPE its RIF V REIT Subsidiaries or any other securities thereofthereof except as permitted under the applicable governing document of the RIF V REIT to preserve the RIF V REIT’s status as a real estate investment trust under the Code; (b) other than in accordance with Section 4.08(a), issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE RIF V REIT or of its RIF V REIT Subsidiaries or any other assets of the SPE RIF V REIT or SPE its RIF V REIT Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreementand limited liability company agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE the RIF V REIT’s or SPE Subsidiary’s its RIF V REIT Subsidiaries’ books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its RIF V REIT Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax returnReturn; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the any Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE RIF V REIT or any of the RIF V REIT Subsidiaries to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; (j) take any action or fail to take any action the result of which would have a RIF V REIT Material Adverse Effect; or (jk) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During 6.1 Conduct of the period from Business Prior to the Closing. From the date hereof to of this Agreement until the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions)Date, the SPE Members and Seller shall, and shall use cause Eagle Eye, Frost, Jaws and the other Seller Affiliates and respective officers, directors and employees, to: (a) Conduct the Business in the ordinary course of business; (b) Pay all of its Liabilities and Taxes when due, subject to good faith disputes over such Liabilities or Taxes; (c) Maintain insurance coverage in amounts adequate to cover the reasonably anticipated risks of Seller and the Business; and (d) Use commercially reasonable efforts to (and to cause each i) preserve intact all rights of the SPE Subsidiaries Business to retain its employees and (ii) maintain good relationships with employees, licensors, licensees, suppliers, contractors, customers, and others having business dealings with the Business. 6.2 Restrictions on Conduct of the Business Prior to the Closing. From the date of this Agreement until the Closing Date, none of the Members or Seller shall, and they shall cause Eagle Eye, Frost, and Jaws and their respective members, officers, directors and employees, not to: (a) Except as disclosed in Section 6.2(a) of the Business Disclosure Schedule, enter into, create, incur or assume (i) any new borrowings under capital leases or (ii) any obligations which would adversely affect Purchaser’s ability to conduct the Business in substantially the same manner and condition as currently conducted by Seller and the Seller Affiliates; (b) Acquire by merging or consolidating with, or by purchasing any equity securities or assets (which are material, individually or in the aggregate, to Seller) of, or by any other manner, any business or any Entity; (c) Sell, transfer, lease, license or otherwise encumber any of its businesses assets (including the Purchased Assets) used in or relating to the Business, except for the lease, rental or sale of Inventory in the ordinary course of business; (d) Enter into any agreements or commitments with another Person relating to the Business, except on commercially reasonable terms in the ordinary course of business; (e) Violate any Legal Requirement applicable to Seller or the Business; (f) Violate, terminate or amend any Material Contract or Governmental Approval; (g) Commence a Proceeding other than for (i) the routine collection of Receivables or (ii) injunctive relief on the grounds that Seller has suffered immediate and operate irreparable harm not compensable in money damages if Seller has obtained the prior written consent of Purchaser, such consent not to be unreasonably withheld; (h) Make any distributions with respect to, or redeem, repurchase or otherwise acquire any Seller Interests; (i) Purchase, lease, license or otherwise acquire any assets, except for miscellaneous supplies purchased by Seller in the ordinary course of business, provided, however, that Seller may make Qualified Tank Purchases and maintain continue to lease or rent Tanks in the Properties ordinary course of business; (j) Allow Seller to write off as uncollectible, or establish any extraordinary reserve with respect to, any Receivable or other indebtedness in excess of $10,000, in the aggregate; (k) Provide any credit, loan, advance, guaranty, endorsement, indemnity, warranty or mortgage to any Person, including any of the customers, members, officers, employees or directors of Seller or the Business; (l) Borrow from any Person by way of a loan, advance, guaranty, endorsement, indemnity, or warranty, except for borrowings in the ordinary course of business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality under existing credit facilities which credit facilities shall be fully paid at Closing out of the foregoingCash Consideration; (m) Discharge any Encumbrance, during the period from the date hereof indebtedness or other Liability related to the Closing Date and Business except in connection with the Formation Transactions, the SPE shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REIT: (a) (i) declare, set aside or pay any distributions in respect of any of the SPE LLC Interests, except for accounts payable in the ordinary course of business; (n) Change its credit practices, accounting methods or practices or standards used to maintain its books, accounts or business consistent records except as may be required to comply with past practice GAAP or Legal Requirements; (o) Change the terms of its accounts or other payables or Receivables or take any action directly or indirectly to cause or encourage any acceleration or delay in the payment, collection or generation of its accounts or Receivables; (p) Allow Seller or the Business to incur or become subject to any Liability, contingent or otherwise, except current liabilities in the ordinary course of business; (q) Make any material change affecting the Business, including (i) changes in inventory levels (other than Qualified Tank Purchases), management organization or personnel arrangements or working capital levels (payables, receivables and in accordance with the SPE LLC Agreement, inventory); (ii) changes in discretionary costs, such as advertising, maintenance and repairs, and training; (iii) deviations from operating budgets or plans on sales and profitability; or (iv) change any of its business policies, including, advertising, investments, marketing, pricing, purchasing, production, personnel, sales, returns, budget or product acquisition policies (other than Qualified Tank Purchases); (r) Amend Seller’s Certificate of Formation or its Operating Agreement; (s) Allow Seller to issue or authorize the issuance of any other securities in respect lieu of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the for, shares of its equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereofinterests; (bt) issue, deliverIssue, sell, transfer, dispose, mortgage, pledge, assign dispose of or otherwise encumber, or cause authorize the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment disposition or otherwise encumbrance of, any limited liability company, partnership equity interests or other securities or grant, enter into or accept any options, warrants, convertible securities or other rights to acquire any such equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE ownership interest in Seller or SPE SubsidiariesFrost, Eagle Eye or Jaws; (cu) amendHire any new employee, modify or terminate any leaseofficer or key employee (other than for cause) that performs services for the Business, contract or other instruments relating to increase the Propertyannual level of compensation of any existing Business Employee except for regular, except scheduled compensation increases in the ordinary course of business consistent with past practicebusiness, establish or adopt any Employee Benefit Plan (or amend any Employee Benefit Plan to increase an existing benefit), or grant any unusual or extraordinary bonuses, benefits or other forms of direct or indirect compensation to any employee, officer, director, consultant or independent contractor, or other service provider of Seller or the Business; (dv) amend its certificate Except as set forth on Section 6.2(v) of formation the Business Disclosure Schedule, enter into any agreement to make any severance or incentive payments or make any severance or incentive payments to any employee, officer or director of Seller or the SPE LLC Business, except payments made pursuant to written agreements outstanding as of the date of this Agreement; (ew) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make Make or change any other election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any amendment to a Tax elections; Return, enter into any closing agreement, settle or compromise any claim, notice, audit report claim or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations limitation period applicable to any Tax claim or assessmentassessment in respect of Taxes; (hx) terminate or amend any existing insurance policies affecting Subject to Qualified Tank Purchases and the Property that results disclosures in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE Business Disclosure Schedule, fail to violate, maintain all Inventory at current levels or fail to use commercially maintain the Purchased Assets in its possession in good repair, order and condition, reasonable efforts to cure any violation of, any applicable Lawswear and tear excepted; or (jy) authorizeEnter into any Contract or agree, commit in writing or agree otherwise, to take any of the foregoing actionsactions described in Section 6.2(a) through (x) above, or any action that would make any of its representations or warranties contained in this Agreement untrue or incorrect in any material respect or prevent it from performing or cause it not to perform its covenants hereunder.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE YIP and each SAE Entity Member shall use commercially reasonable efforts to (and to cause each of the SPE YIP Subsidiaries and SAE Entity Member Subsidiaries, as applicable, to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE YIP and each SAE Entity Member shall not (and shall not permit any of the SPE YIP Subsidiaries or SAE Entity Member Subsidiaries, as applicable, to) without the prior written consent of the REITOperating Partnership: (a) (i) declare, set aside or pay any distributions in respect of any of the SPE LLC YIP Interests or SAE Entity Member Interests, as applicable, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreementagreement of limited partnership of YIP or the applicable governing document of a SAE Entity Member, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests YIP Interest or SAE Entity Member Interest, as applicable, or make any other changes to the equity capital structure of the SPE YIP, any SAE Entity Member or any SPE YIP Subsidiary or SAE Entity Member Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests YIP Interest or member SAE Entity Member Interest or interests of any of the SPE YIP Subsidiaries or SAE Entity Member Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or YIP, any of the SPE YIP Subsidiaries or SAE Entity Member Subsidiaries or any other assets of YIP, the SPE YIP Subsidiaries, the SAE Entity Member or SPE the SAE Entity Member Subsidiaries, as applicable; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation formation, certificate of organization, limited partnership agreement, limited liability company agreement or the SPE LLC Agreementoperating agreement, as applicable; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE YIP, any SAE Entity Member or SPE any YIP Subsidiary or SAE Entity Member Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE YIP, any SAE Entity Member, any YIP Subsidiary or any of its Subsidiaries SAE Entity Member Subsidiary as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax returnReturn; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE YIP or any SAE Entity Member to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except (i) for the repayment of certain indebtedness as described in the notes to the audited financial statements of FP Land, (ii) as otherwise provided for or contemplated by this Agreement or (ii) in connection with the Formation Transactions), the SPE FP Land shall use commercially reasonable efforts to (to, and to shall cause each of the SPE FP Land Subsidiaries to) , conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice practice, pay its debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE FP Land shall not (not, and shall not permit any of the SPE FP Land Subsidiaries to) , without the prior written consent of the REITOperating Partnership, which consent may be withheld by the Operating Partnership in its sole discretion: (a) (i) other than distributions to the members of FP Land in connection with such members’ payment of any Taxes related to their ownership of the membership interest of FP Land or as otherwise contemplated by this Agreement, declare, set aside or pay any dividends or distributions in respect of any of the SPE LLC FP Land Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreementapplicable governing document of FP Land, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC FP Land Interests or make any other changes to the equity capital structure of FP Land or the SPE or any SPE SubsidiaryFP Land Subsidiaries, or (iii) purchase, redeem or otherwise acquire any SPE LLC FP Land Interests or member interests of any of the SPE FP Land Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE of FP Land or any of the SPE FP Land Subsidiaries or any other assets of FP Land or the SPE or SPE FP Land Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreementand limited liability company agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE FP Land’s or SPE Subsidiary’s the FP Land Subsidiaries’ books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other material Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax returnReturn; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the any Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit FP Land or any of the SPE FP Land Subsidiaries to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; (j) take any action or fail to take any action the result of which would have an FP Land Material Adverse Effect; or (jk) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period 7.1 The Sellers shall procure that, from the date hereof Signing Date to the Closing Date Date: (except as otherwise provided for or contemplated by this Agreement or in connection with 1) The Target Company and the Formation Transactions), Subsidiaries of the SPE Target Company shall use commercially reasonable their best efforts to to: (and to cause each of the SPE Subsidiaries toi) conduct its businesses and operate and maintain the Properties business with a view to growth in the ordinary course of business consistent and in accordance with past practice and use commercially reasonable efforts to practice; (ii) preserve intact its current present business organizations organization; (iii) maintain in effect and preserve its no change of all of the Consents that have been obtained; (iv) maintain satisfactory relationships with customers, tenants, suppliers, advertisers and others the related parties having material business dealings relationships with it, ; (v) maintain books and records in each case consistent accordance with past practice. In addition, and without (vi) comply with all its signed contracts and agreements. (2) Without limiting the generality of the foregoing, during except with the period from written consent of the Purchaser, the Target Company and the Subsidiaries of the Target Company shall not: (i) change its corporate management structure; (ii) increase or decrease its registered capital or share capital; (iii) declare, make or pay any dividend or other distribution or do or allow to be done anything which renders its financial position less favorable than the date hereof of this Agreement; (iv) incur any capital expenditures or any obligations or liabilities or any supply credit; (v) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses; (vi) sell, lease or otherwise transfer, or create or incur any Encumbrance on, any of its equity interests, assets, properties, interests or businesses; (vii) make any loans, advances or capital contributions to, or investments in, any other Person; (viii) create, incur, assume, suffer to the Closing Date and except exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees [REDACTED] ); (ix) change any Consent that has been obtained in connection with the Formation Transactionsconstruction and operation of the Data Center, or conduct any other act that may cause such Consent to material and adverse change or have Material Adverse Effect on such Consent; (x) [REDACTED]. ​ (xi) do any act or thing which may result in any material change in the nature or scope of the operations; (xii) enter into any agreement or arrangement that limits or otherwise restricts it or any successor to it or that could, after the Closing, limit or restrict it, the SPE shall not Purchaser or any Affiliates of the Purchaser, from engaging or competing in any line of business, in any location or with any Person; (xiii) sign, modify, amend or terminate any contract (other than for the purpose of satisfying the Conditions Precedent); (xiv) delay making payment of any trade debt beyond the date of expiry of the credit period authorized by the relevant creditors (or (if different) the period extended by creditors in which to make payment); (xv) settle, or offer or propose to settle, (a) any litigation, investigation, arbitration, proceeding or other claim involving or against it, (b) any shareholder litigation or dispute against it or any of its officers or directors or (c) any litigation, arbitration, proceeding or dispute that relates to the Proposed Transactions contemplated hereby; (xvi) change the policies and shall not permit methods of accounting, except as required by concurrent changes in the PRC GAAP; (xvii) do any act or thing that would have Material Adverse Effect on the operation or financial condition of the Target Company and/or the Subsidiaries of the Target Company; (xviii) affixing the official seal, financial seal, contract seal, legal representative's signature seal and other seals capable of representing the Target Company and/or the Subsidiaries of the Target Company on any written documents or information related to the aforementioned acts or things; and (xix) consent, resolve or undertake to do any of the SPE Subsidiaries toforegoing acts or things. (3) without From the Signing Date to the Closing Date, except with the prior written consent of the REITPurchaser, the Sellers shall not: (a) (i) declaredispose of any interest in the Sellers’ Shares or do any act or thing that may subject the Sellers’ Shares to any Encumbrance; (ii) adopt any resolution other than a resolution relating to the execution, set aside delivery, effectiveness and performance of this Agreement and the consummation of the Proposed Transactions hereunder; and (iii) do or pay omit to do, procure or allow to do or omit to do any distributions act or thing which would ​ result (or be likely to result) in respect a breach of any of the SPE LLC InterestsWarranties (if the Warranties were restated at the Closing Date). 7.2 From the Signing Date to the Closing Date, except the Sellers, the Target Company and the Subsidiaries of the Target Company shall procure that the Purchaser, their agents and representatives to be given full access to the assets, operation and books and records of the Target Company and the Subsidiaries of the Target Company in an arrangement and manner to be agreed upon by the ordinary course Sellers and the Purchaser. The Sellers and Target Company shall provide such information regarding the businesses and affairs of business consistent with past practice the Target Company and the Subsidiaries of the Target Company as the Purchaser may reasonably require. 7.3 [REDACTED]. 7.4 [REDACTED] 7.5 The Sellers shall notify the Purchaser in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance writing of any other securities changes or potential changes in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests information set forth in Exhibit C and Exhibit D within [REDACTED] Business Days from the time when the Sellers are aware of any of such changes or potential changes. 7.6 The Parties agree that prior to the SPE Closing Date, the Sellers, the Target Company and the Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating Target Company shall continue to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation be responsible for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actions.[REDACTED]

PRE-CLOSING COVENANTS. During the period from the date hereof of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Date, Motorola covenants and agrees as follows (except for the Cody Restructuring, as set forth in the Disclosure Letter, as contemplated by the Reorganization Agreement or with the prior written consent of TPG Acquisition): (i) to use all Reasonable Efforts to consummate the transactions contemplated by the Reorganization Agreement in accordance with the terms of the Reorganization Agreement in accordance with the terms of the Reorganization Agreement and (ii) not to amend any of the Reorganization Agreement or the Collateral Agreements except as contemplated by the Interim Manufacturing/Transition Agreement or with the consent of TPG Holding, which consent shall not be unreasonably withheld; (b) at all reasonable times prior to the Closing Date Date, to make the office facilities, plants, machinery and equipment, inventories, books of account and records of the Business available for examination and inspection by TPG Acquisition and its agents and representatives; (c) to conduct the Business in the ordinary course of business and in a manner consistent with past practice; (d) not to issue, sell, pledge, dispose of or encumber, or authorize the issuance, sale, pledge, disposition or encumbrance of, any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including, without limitation, any phantom interest) in the Company, any of the SCG Post-Closing Entities or any interest of Motorola in a Joint Venture; (e) not to sell, assign, transfer, convey, lease, pledge, dispose of or encumber any Purchased Assets (except as otherwise provided for (i) sales of assets in the ordinary course of business and in a manner consistent with past practice, (ii) dispositions of obsolete or contemplated by this Agreement or worthless assets, and (iii) sales of immaterial assets not in connection with excess of $10.0 million in the Formation Transactionsaggregate), the SPE shall use commercially reasonable efforts ; (f) not to (and to cause each i) acquire (by merger, consolidation, or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof; or (ii) incur any Indebtedness (other than Indebtedness of the SPE Subsidiaries totype described in clause (vii) conduct its businesses and operate and maintain of the Properties definition thereof in an aggregate amount not exceeding $5.0 million incurred in the ordinary course of business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality (but exclusive of refinancings or replacements of such Indebtedness which exists as of the foregoingdate hereof), during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REIT: (a) (i) declare, set aside or pay any distributions in respect of any of the SPE LLC Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE loans or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Propertyadvances, except for loans or advances in an aggregate amount not exceeding $5.0 million made in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file not to increase the compensation payable, or to become payable, to the employees of the Business, except for increases in salary or wages of employees of the Business in the ordinary course, consistent with past practices of the Business and not exceeding, in the aggregate on an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) annualized basis, 5% of the total compensation expense of the Business for the year ended December 31, 1998, or grant any severance, termination, retention or change in control benefits or compensation to, or modify or enter into any employment, severance, retention or change in control agreement or arrangement, in excess of $200,000 on Internal Revenue Service Form 8832 (Entity Classification Election) to treat an annual basis with any employees of the SPE Business having a current annual base salary of $125,000 or more, or establish, adopt, enter into or amend any collective bargaining agreement, Plan, trust, fund, policy or arrangement for the benefit of any current or former employees or any of its Subsidiaries their beneficiaries, except, in each case, as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessmentmay be required by law; (h) terminate or amend any existing insurance policies affecting to use Reasonable Efforts to preserve intact the Property that results in a material reduction in insurance coverage for business, operations, organization and goodwill of the PropertyBusiness; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts Reasonable Efforts to cure any violation of, any applicable Laws; orcontinue to maintain existing business relationships of the Business with customers and suppliers other than relationships not economically beneficial to the Business; (j) authorizeto keep the books of account, commit records and files of the Business in the ordinary course of business and in accordance with existing practice; (k) to maintain all material assets and properties of the Business in their current condition, normal wear and tear excepted; (l) to maintain insurance upon all of such assets and properties in such amounts and of such kinds comparable to that in effect on the date hereof with insurers of substantially the same or agree better financial condition; (m) to promptly notify TPG Acquisition of any (A) extraordinary loss relating to the Business, (B) casualty losses or damages suffered relating to the Business with respect to property or assets having an individual replacement cost of more than $1.5 million or an aggregate replacement cost of more than $10.0 million or which could cause a Material Adverse Effect, whether or not such losses or damages are covered by insurance and (C) action, suit, proceeding, claim or arbitration which could cause a Material Adverse Effect to the Business; (n) to comply in all material respects with all applicable Laws to which the Business is subject; (o) not to enter into any contract that would be a Material Contract (which would reasonably be expected to involve more than $1.5 million over the next 12 months, except with respect to Material Contracts as defined in SECTION 8.22(c), (d) and (g), which shall not be subject to the provisions of this parenthetical), modify, terminate, accelerate or amend in any material respect any Material Contract or waive, release or assign any material rights or claims thereunder (in each case as would reasonably be expected to involve less than $1.5 million except with respect to Material Contracts as defined in Section 8.22(a), (b), (e) and (f), which shall not be subject to the provisions of this parenthetical). (p) not to make any payment or prepayment of Taxes in excess of the amount required by law; (q) not to pay, discharge or satisfy any material claims, litigation, arbitration, liabilities or obligations, or waive any material right, associated with the Business (absolute, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of such liabilities or obligations in the ordinary course of business consistent with past practice; PROVIDED, that Motorola may take any of the actions specified in this clause (p) with regard to any claim, litigation, arbitration, liability, obligation or right which shall constitute a Retained Liability or an Excluded Asset; (r) not to take any action or refrain from taking any action where such action or inaction would reasonably be expected to cause any of the representations or warranties of Motorola contained herein to be untrue or incorrect in any material respect; (s) not to take any steps to sell finished inventory to its distributors with the intent or expectation of increasing the finished inventories of any such distributors to more than fourteen (14) weeks of finished inventory at current resale rates, or to engage in other special selling efforts, such as the implementation of extraordinary price discounts, rebates or the like; (t) to take the actions contemplated to be taken prior to the Closing pursuant to the Collateral Agreements and the Interim Manufacturing/Transition Agreement in accordance with the respective terms thereof; (u) not to agree or consent, and to cause its designees on the Boards of Directors (or other governing bodies) of the Joint Ventures not to agree or consent to any capital call, capital commitment or other Joint Venture financing or other action presented for approval by Motorola, any of its Affiliates, such Boards of Directors or other governing bodies, in each case except as provided for Item 2 of the Disclosure Letter; and (v) not to enter into any Contract to engage in any action prohibited by the foregoing actionsclauses (a) through (u). Except as expressly provided in this Section 7.1, the provisions of clauses (b) through (s) of this SECTION 7.1 shall not apply with respect to any Joint Venture.

PRE-CLOSING COVENANTS. During (a) Operations and Maintenance of the period from Business. From and after the date hereof and prior to the Closing Date (Closing, unless the Buyer and the Parent Investor otherwise consent in writing or except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions)set forth expressly herein, the SPE shall use commercially reasonable efforts to (and to cause each of the SPE Subsidiaries to) Selling Subsidiary will conduct its businesses and operate and maintain the Properties their respective business only in the ordinary course of business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case as conducted by such Selling Subsidiary consistent with past practice. In additionFurthermore, and without limiting the generality of the foregoingexcept as may otherwise be required under this Agreement, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE no Selling Subsidiary shall not (and shall not permit do any of the SPE Subsidiaries to) following, without the prior written consent of the REITBuyer and the Parent Investor: (a) (i) declareenter into any Contract, set aside agreement or pay transaction, or incur or permit to be incurred, any distributions obligation or other Liabilities with respect to or materially affecting its business, the Acquired Assets, and Parent shall not enter into any Contract, agreement or transaction, or incur or permit to be incurred, any obligation or other Liabilities with respect to the Parent Shares; (ii) remove any of its assets (other than cash and cash equivalents) used in respect its business by way of dividend, distribution, withdrawal or any other means; (iii) permit to be incurred any Lien on any of its assets used in its business; (iv) increase the compensation payable or to become payable to any of its employees retained in connection with its business, or otherwise enter into or alter any employment or consulting agreement; (v) commence, enter into, or alter any profit sharing, deferred compensation, bonus, option or purchase plan for its interests or other equity securities, pension, retirement or incentive plan or any fringe benefit plan for its employees retained in connection with its business; (vi) terminate the employment of any of the SPE LLC Interestsits employees retained in connection with its business or hire or engage any employees or consultants in connection with its business, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereofits business; (bvii) issuecancel or waive any Claims or rights of any Selling Subsidiary, deliverwith respect to or materially affecting its business or the Acquired Assets, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in outside the ordinary course of such Selling Subsidiary’s business and consistent with past practice; (dviii) amend change any accounting methods used by any Selling Subsidiary in connection with its certificate of formation business, except and solely to the extent required by applicable generally accepted accounting principles or the SPE LLC AgreementLaw; (eix) adopt a plan pay or incur any obligation or Liability, absolute or contingent, with respect to or materially affecting its business or the Acquired Assets other than obligations or Liabilities incurred in the ordinary course of liquidation, dissolution, merger, consolidation, restructuring, recapitalization its business and consistent with past practice or reorganizationpurchase any asset other than in the ordinary course of its business; (fx) materially alter the manner of keeping such SPE make any Tax election or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; Liability which could reasonably be expected to have an adverse impact on the Taxes payable by Buyer; (xi) enter into any tax allocation agreementjoint venture, tax sharing agreement, tax indemnity agreement partnership or closing agreement relating to other similar arrangement or form any Taxother material arrangement for the operation of its business; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;and (hxii) terminate or amend enter into any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE binding commitment to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take do any of the foregoing actionsforegoing. Notwithstanding anything herein to the contrary the parties and Parent Investor agree that Parent shall make a payment to Xxxxxxx Matvieshen on or about the date hereof to retire a portion of a debt outstanding from Parent to Mr. Matvieshen.

PRE-CLOSING COVENANTS. During (a) The Company agrees that during the period from the date hereof of this Agreement to the Closing Date Effective Time (unless Parent shall otherwise provide prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed) and except as otherwise provided for or contemplated by this Agreement or as set forth in connection with the Formation TransactionsSchedule 6.1(a), the SPE shall use commercially reasonable efforts to (Company will, and to will cause each of the SPE its Subsidiaries to) , conduct its their respective businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice business, and shall use commercially reasonable efforts to preserve intact their current business organizations, goodwill, rights and franchises keep available the service of its current business organizations officers and employees and preserve its relationships with customers, tenants, suppliers, advertisers suppliers and others having business dealings with it, in each case consistent with past practice. In addition, and without Without limiting the generality of the foregoing, during the period from the date hereof and except as otherwise permitted in this Agreement, as set forth in Schedule 6.1(a) or as may be required by applicable Laws, prior to the Closing Date and except in connection with Effective Time, neither the Formation Transactions, the SPE shall not (and shall not permit Company nor any of the SPE its Subsidiaries to) will, without the prior written consent of the REIT:Parent (which shall not be unreasonably withheld, conditioned or delayed): (a) (i) except for shares of Company Common Stock issued or delivered upon the exercise of Company Options outstanding on the date hereof in accordance with their terms in existence as of the date of this Agreement, issue, grant, deliver, sell, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (A) any additional shares of capital stock of any class, or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock of the Company, any of its Subsidiaries or any successor thereto, or (B) any other securities in respect of, in lieu of, or in substitution for, shares of the Company Common Stock outstanding on the date hereof; (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any outstanding capital stock of the Company or its Subsidiaries or any securities convertible into or exercisable for any shares of capital stock of the Company or any of its Subsidiaries; (iii) split, combine, subdivide or reclassify any capital stock of the Company or its Subsidiaries or declare, set aside for payment or pay any distributions dividend, or make any other actual, constructive or deemed distribution in respect of any capital stock of the SPE LLC InterestsCompany or its Subsidiaries or otherwise make any payments to shareholders of the Company or its Subsidiaries in their capacity as such, other than dividends by a wholly owned Subsidiary of the Company to the Company or any of its Subsidiaries; provided, however, that the Company shall be permitted to make regular quarterly cash dividends in an amount not exceeding $0.125 per share of Company Common Stock except that the first quarterly dividend made after the Company adjusts its dividend record and payment dates pursuant to Section 6.13 shall be prorated to reflect a dividend for the period covered by the declaration based on an annual dividend rate of $0.50 per share; (iv) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger or a merger of Subsidiaries); (v) amend the Company Charter or Company By-Laws or other organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any Subsidiary; (vi) make any material acquisition, by means of merger, consolidation or otherwise, or any material disposition, of assets or securities of any business or corporation, partnership, joint venture or other business organization or division thereof; (vii) make capital expenditures that are not consistent in timing and amount with past practice, incur any indebtedness or guarantee any such indebtedness or make any loans, advances or capital contributions to, or investments in, any other Person, other than to the Company or any Subsidiary of the Company; (viii) pay or agree to pay any pension, retirement allowance or other employee benefit not required or contemplated by any of the existing benefit, severance, termination, pension or employment plans, agreements or arrangements as in effect on the date hereof to any such director or officer, whether past or present; (ix) except as set forth on Schedule 6.1(a), (A) enter into any new or materially amend any existing employment or severance or termination agreement with any current or former director or officer; (B) grant any increases in the compensation of any of its directors or officers, except in the ordinary course of business; (C) increase or commit to increase the compensation of any employee (other than officers and directors) of the Company or any of its Subsidiaries, or pay or commit to pay any bonus, profit sharing or other similar payment to such Persons, in each case other than (i) merit increases consistent with past practice of the Company prior to fiscal year 2009 (in terms of frequency, timing and amount) or (ii) with respect to employees other than officers and directors, isolated merit salary increases or bonuses not in the context of any broad-based plan or program; (D) grant or commit to grant to any employee, officer, shareholder, director, consultant or agent of the Company or any of its Subsidiaries any new or modified severance, change of control, termination, retention or similar arrangement or increase or accelerate any benefits payable under its severance, retention or termination pay policies in effect on the date hereof; or (E) except in the ordinary course of business consistent with past practice and in accordance or as may be required to comply with the SPE LLC Agreementapplicable Laws, (ii) issue or authorize the issuance of become obligated under any other securities in respect ofnew pension plan, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiarywelfare plan, multiemployer plan, employee benefit plan, severance plan, benefit arrangement, or (iii) purchasesimilar plan or arrangement, redeem which was not in existence on the date hereof, or otherwise acquire amend any SPE LLC Interests such plan or member interests arrangement in existence on the date hereof if such amendment would have the effect of materially enhancing any of the SPE Subsidiaries or any other securities thereofbenefits thereunder; (bx) issuemake any material tax election, deliverchange any material tax election already made, sellfile any amended tax returns or settle or compromise any material federal, transferstate, dispose, mortgage, pledge, assign local or otherwise encumber, foreign income tax liability; (xi) make any change in its accounting principles or cause methods except insofar as may be required by a change in GAAP or change the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any independent public accountants of the SPE Subsidiaries or any other assets of the SPE or SPE Company and its Subsidiaries; (cxii) amend(x) pay, discharge or satisfy any material claims (including claims of shareholders), liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), except for the payment, discharge or satisfaction of liabilities or obligations in the ordinary course of business consistent with past practice or in accordance with their terms as in effect on the date hereof, or (y) waive, release, grant, or transfer any rights of material value or modify or terminate change in any material respect any existing material license, lease, contract or other instruments relating to the Propertydocument, except other than in the ordinary course of business consistent with past practice; (dxiii) enter into or amend its certificate any collective bargaining agreement or other agreement with any labor organization, union or association outside the ordinary course of formation or the SPE LLC Agreementbusiness consistent with past practice and in consultation with Parent; (exiv) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement) other than settlements or compromises of litigation where the settlement is limited solely to monetary payment and the release of claims and the amount paid (after giving effect to insurance proceeds actually received) in settlement or compromise does not exceed $250,000, provided that the aggregate amount paid in connection with the settlement or compromise of all such litigation matters shall not exceed $500,000; (i) other than in the ordinary course of business consistent with past practice or as expressly permitted by this Agreement, terminate, renew, amend or modify in any material respect, or fail to enforce any material provision of, any Company Material Contract or (ii) enter into any Company Material Contract not in the ordinary course of business consistent with past practice and not terminable by the Company or any of its Subsidiaries party thereto without penalty on notice of ninety (90) days or less; (xvi) except as required in connection with the transactions contemplated hereby, take any action that will create a requirement to make a filing, registration or application with, or seek the waiver, consent or approval of, the FCC, the PAPUC or any other state public service or public utilities commission or any other Government Entity other than in the ordinary course of business consistent with past practice or in response to filings initiated by such Government Entities or other parties, or discontinue or withdraw any authorized service or voluntarily relinquish any License or institute any proceeding with respect to, or otherwise materially change, amend, or supplement any of its tariffs on file with the FCC, the PAPUC or any other state public service or public utilities commission, except as required by applicable Law; (xvii) effectuate a “plant closing” or “mass layoff,” as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988 (“WARN”), affecting in whole or in part any site of employment, facility, operating unit or employee of the Company or any Subsidiary, without notifying the Parent or its Affiliates in advance and without complying with the notice requirements and other provisions of WARN; (xviii) nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time, and nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct Parent’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, each of the Company and Parent shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations; (xix) any agreement, contract or binding commitment with a video content provider requiring fixed payments after the date hereof under any such agreement exceeding $250,000 per year or which is not terminable without penalty upon less than 12 months’ notice; (xx) take any action or fail to take any action which could reasonably be expected to result in a breach of any representation warranty or covenant hereunder; (xxi) make or agree to make a cash contribution to any pension plan maintained by the Company or any of its Subsidiaries; (xxii) enter into, amend or modify any hedge, collar, option, swap, forward, future or derivative transaction or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions in each case other than ordinary course of business consistent with past practice and in consultation with Parent; or (xxiii) authorize, recommend, propose or announce an intention to do any of the foregoing, or enter into any contract, agreement, commitment or arrangement to do any of the foregoing. (b) Parent shall not, without the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed): (i) adopt any amendments to its Parent Charter or Parent By-Laws which would alter the terms of the Parent Common Stock; (ii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganizationother reorganization of Parent (other than with respect to the Merger or in connection with other Parent acquisitions); (fiii) materially adopt any amendments to its Parent Charter or otherwise alter its capital structure except as may be required by law, the manner rules and regulations of keeping such SPE the SEC or SPE Subsidiary’s books, accounts Exchange or records or in order to increase the accounting practices therein reflectednumber of shares of Parent Common Stock; (giv) file authorize, recommend, propose or announce an entity classification election pursuant intention to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or do any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make the foregoing, or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation contract, agreement, tax sharing agreement, tax indemnity agreement commitment or closing agreement relating arrangement to do any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Lawsforegoing; or (jv) authorize, commit take any action or agree fail to take any action which could reasonably be expected to result in a material breach of the foregoing actionsany material representation, material warranty or material covenant hereunder.

PRE-CLOSING COVENANTS. During the period from the date hereof Prior to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions)Closing, the SPE shall use commercially reasonable efforts to (Napo and to cause each of the SPE Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REITJaguar will: (a) (i) Not amend their respective Charters or split, combine, reclassify or subdivide any shares of stock or other equity securities or ownership interests or declare, set aside or pay any dividend on or make any other distributions (whether in respect cash, stock or other property) or redeem, repurchase or otherwise acquire, directly or indirectly, any shares of any of the SPE LLC Intereststheir respective capital stock or other equity interests, except as provided or contemplated in this Binding Agreement of Terms or the Merger Documents; and (ii) maintain their respective books, records and financials in accordance with generally accepted accounting principles consistent with past practice. Prior to the Closing, Napo will: (i) conduct its business in all material respects in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business a manner consistent with past practice; (dii) amend use its certificate reasonable best efforts to maintain its material assets and properties in their current condition (normal wear and tear and damage caused by casualty or by any reason outside of formation or the SPE LLC AgreementNapo’s control excepted); (eiii) adopt a plan of liquidationpreserve intact in all material respects its current business organization, dissolutiongoodwill, merger, consolidation, restructuring, recapitalization or reorganizationongoing businesses and relationships with third parties, (iv) maintain all existing insurance policies; (fv) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflectednot make any material capital expenditures; (gvi) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE not sell, lease or license any material portion of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change assets; (vii) not incur any debt other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; than customary trade payables and Merger expenses; (viii) not enter into any tax allocation agreementmaterial agreements; and (ix) not incur, tax sharing agreementcreate, tax indemnity agreement assume, refinance, replace or closing agreement relating to prepay any Tax; surrender indebtedness for borrowed money or issue or amend the terms of any right to claim a Tax refund; existing debt securities or consent to any extension assume, guarantee or waiver of the statute of limitations period applicable to any Tax claim endorse, or assessment; otherwise become responsible (hwhether directly, contingently or otherwise) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit indebtedness of any other person. These and other customary pre-Closing covenants shall be included in the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actionsMerger Documents.

PRE-CLOSING COVENANTS. During The Company and the period from Principal Sellers severally covenant and agree that, between the date hereof to Execution Date and the Closing Date (Date, except as set forth in Section 5.1 of the Disclosure Schedule or as expressly provided by any other provision of this Agreement, unless Parent or Buyer shall otherwise provided for or contemplated by this Agreement or agree in connection with writing, (1) the Formation Transactions)business of the Company shall be conducted only in, and the Company shall not take any action except in, the SPE Ordinary Course of Business and (2) the Company shall use commercially reasonable efforts its Best Efforts to (keep available the services of such of the current officers, significant employees and consultants of the Company and to cause each preserve the current relationships of the SPE Subsidiaries to) conduct its businesses Company with such of the customers, suppliers and operate and maintain other persons with which the Properties Company has significant business relations in the ordinary course of business consistent with past practice and use commercially reasonable efforts order to preserve substantially intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practiceorganization. In addition, and without limiting the generality except as set forth in Section 5.1 of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation TransactionsDisclosure Schedule or as contemplated by any other provision of this Agreement, the SPE Company shall not (unless required by applicable Laws) and shall not neither cause nor permit any of the SPE Subsidiaries Company's affiliates (over which it exercises control), or any of their officers, directors, employees and agents to) , between the Execution Date and the Closing Date, directly or indirectly, do, or agree to do, any of the following without the prior written consent of the REITParent or Buyer, which consent shall not be unreasonably withheld or delayed: (a) 5.1.1 amend or otherwise change its Organizational Documents; 5.1.2 issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, (i) declare, set aside or pay any distributions in respect shares of capital stock of the Company of any class, or securities convertible or exchangeable or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, or any other ownership interest (including, without limitation, any phantom interest), of the SPE LLC InterestsCompany; provided that the Company may issue shares in connection with the exercise of options, may accelerate the vesting of options and grant additional options as long as any option recipients agree to enter into Cashout Agreements or (ii) except in the ordinary course Ordinary Course of business consistent with past practice and in accordance with the SPE LLC AgreementBusiness, (ii) issue any property or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure assets of the SPE Company, except pursuant to contracts or any SPE Subsidiaryagreements in force at the date of this Agreement; 5.1.3 except under the Cashout Agreements, reclassify, combine, split, subdivide or (iii) purchaseredeem, redeem purchase or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries retire, directly or any other securities thereof; (b) issueindirectly, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make capital stock or change any other Tax elections; settle securities convertible or compromise any claim, notice, audit report or assessment in respect exchangeable into shares of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver capital stock of the statute of limitations period applicable Company; provided that, if any stockholder determines not to become a Joining Seller, the Company may exercise any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Propertyrights it has to repurchase such Shares; (i) knowingly cause or permit the SPE to violateacquire (including, without limitation, by merger, consolidation, or fail acquisition of stock or assets) any interest in any corporation, partnership, other business organization, person or any division thereof or any assets, (ii) incur or become contingently liable for any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person for borrowed money, except for indebtedness for borrowed money incurred under existing debt arrangements or in the Ordinary Course of Business or other indebtedness for borrowed money with a maturity of not more than one year in a principal amount not, in the aggregate, in excess of $250,000; (iii) terminate, cancel or request any material change in, or agree to use commercially reasonable efforts to cure any violation ofmaterial change in, any Applicable Contract that is material or enter into any contract or agreement material to the business, results of operations or financial condition of the Company, other than in the Ordinary Course of Business, consistent with past practice; (iv) make or authorize any capital expenditure, other than capital expenditures that are not, in the aggregate, in excess of $50,000 for the Company; or (v) enter into or amend any contract, agreement, commitment or arrangement that, if fully performed, would not be permitted under this Section 5.1.4; 5.1.5 except as may be required by contractual commitments or corporate policies with respect to severance or termination pay in existence on the date hereof, all of which are disclosed in Section 3.12 of the Disclosure Schedule: (i) increase the compensation payable or to become payable to its officers or employees or (ii) grant any rights to severance or termination pay to, or enter into any employment or severance agreement with, any director, officer or other employee of the Company, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee, except to the extent required by applicable LawsLaw; 5.1.6 take any action with respect to accounting policies or procedures that is not consistent with GAAP applied in a manner consistent with the preparation of the Company's historical financial statements or required by changes in such GAAP; 5.1.7 waive, release, assign, settle or compromise any material claims or litigation; 5.1.8 make any material Tax election with respect to, or settle or compromise any material, federal, state, local or foreign Tax liability; or (j) authorize5.1.9 authorize or enter into any formal or informal arrangement or agreement, commit or agree otherwise make any commitment to take do any of the foregoing actionsforegoing.

PRE-CLOSING COVENANTS. During the period from (a) From the date hereof to through the Closing Date (earlier of the termination of this Agreement or the Closing, except as otherwise provided for or contemplated permitted by this Agreement or consented to by Buyer in connection with the Formation Transactions)writing, the SPE shall use commercially reasonable efforts to (and to cause each of the SPE Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REITSellers shall: (a) (i) declare, set aside or pay any distributions in respect of any of operate the SPE LLC Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except Business in the ordinary course of business consistent with past practice; (dii) amend its certificate use commercially reasonable efforts to preserve all of formation or the SPE LLC AgreementSellers’ certificates, Permits, and other authorizations and other rights issued by any Governmental Authority that are necessary to conduct and operate the Facilities in the ordinary course of business; (eiii) adopt a plan continue to (i) maintain the payment of liquidationaccounts payable and pay such accounts payable or other liabilities of Sellers in connection with the operation of the Facilities on the due date when the same would have been paid in the ordinary course of business, dissolution, merger, consolidation, restructuring, recapitalization or reorganizationand (ii) perform in all material respects all of its obligations under the Transferred Contracts; (fiv) materially alter maintain (i) the manner of keeping such SPE or SPE Subsidiary’s booksPurchased Assets in operating condition and repair for the purposes for which they are used, accounts or records or the accounting ordinary wear and tear excepted, consistent with past practices therein reflectedand (ii) equipment and Inventory at levels consistent with past practices; (gv) maintain in full force and effect the insurance policies currently maintained on the Purchased Assets (or policies providing substantially the same coverage); (vi) fully comply with all applicable Laws and Permits, including all certification procedures and regulations. (b) Without limiting the provisions of Section 5.1(a), from the date hereof through the earlier of the termination of this Agreement or the Closing, except (a) as otherwise permitted by this Agreement, or (b) as set forth on Schedule 5.1(b), Sellers shall not, without the prior written consent of Buyer, not to be unreasonably withheld: (i) dissolve, liquidate, restructure, merge or consolidate any Seller; (ii) modify, renew, terminate or assign any Transferred Contract to which such Seller is a party, or waive, release or assign any rights or claims thereunder, or violate any term of any such Transferred Contract (but excluding modifications in the ordinary course of business); (iii) sell, assign, transfer, lease, license, mortgage, pledge, encumber (or otherwise create, incur or permit the creation or incurrence of any Lien on) or otherwise dispose of any of the Purchased Assets (other than asset sales, transfers or dispositions in the ordinary course of business, consistent with past practice); (iv) hire any Facilities Employees (other than to fill vacancies for employees with annual base compensation below $100,000, and then only in the ordinary course of business), or terminate (except for cause) the employment of any Facilities Employee with annual base compensation in excess of $100,000. (v) modify, cancel, surrender, terminate, or suspend, or knowingly suffer to exist any modification, cancellation, surrender, termination or suspension of any Permit, other than in the ordinary course of business consistent with past practice, unless such modification, cancellation, surrender, termination or suspension would have an adverse effect on the Business; (vi) enter into, adopt, or engage in negotiations regarding any collective bargaining agreement or similar collective labor agreement or arrangement; (vii) except as required by Law, change any of the policies, practices or procedures with respect to accounts payable (including any payment terms with respect to any vendor under any Transferred Contract); (viii) settle or seek to dismiss any Action relating to the Business involving (A) one or more payments of damages aggregating in excess of $10,000, or (B) involving a finding or admission of a violation of Law; (ix) terminate, amend, or fail to renew any material Insurance Policy, other than in the ordinary course of business; (A) except as required by applicable law, not amend, modify or terminate any Facilities Employee Plan or (B) enter into, establish, or adopt any new pension, retirement, incentive equity, stock option, stock purchase, phantom equity, savings, profit sharing, deferred compensation, consulting, bonus, severance, group insurance or other employee benefit plan or arrangement in respect of any Facilities Employee; (xi) file an entity classification election pursuant any amended Tax Return, enter into any closing agreement with respect to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; Taxes, settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement other proceeding relating to any Tax; Taxes, surrender of any right to claim a Tax refund; refund or other reduction of Taxes, consent to any extension or waiver of the statute of limitations limitation period applicable to any Tax claim or assessment; (h) terminate , in each case with respect to the Purchased Assets or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable LawsBusiness; or (jxii) authorize, enter into any agreement or otherwise commit or agree to take any of actions described in the foregoing actionsclauses.

PRE-CLOSING COVENANTS. During the period 7.1 The Sellers shall procure that, from the date hereof Signing Date to the Closing Date Date: (except as otherwise provided for or contemplated by this Agreement or in connection with 1) The Target Company and the Formation Transactions), the SPE Target Company Subsidiary shall use commercially reasonable their best efforts to to: (and to cause each of the SPE Subsidiaries toi) conduct its businesses and operate and maintain the Properties business in the ordinary course of business consistent with past practice and use commercially reasonable efforts a view to growth, [REDACTED]; (ii) preserve intact its current present business organizations organization; (iii) maintain in effect and preserve its no change of all of the Consents that have been obtained [REDACTED]; (iv) maintain satisfactory relationships with customers, tenants, suppliers, advertisers and others the related parties having material business dealings relationships with it, ; (v) maintain books and records in each case consistent accordance with past practice. In addition, and without (vi) comply with all its signed contracts and agreements (if any). (2) Without limiting the generality of the foregoing, during except with the period written consent of the Purchaser (If the Purchaser fails to make any written reply to the Target Company or the Target Company Subsidiary within [REDACTED] Business Day after receiving the written application from the date hereof Target Company or the Target Company Subsidiary, the Purchaser shall be deemed to have agreed on the application), the Target Company and the Target Company Subsidiary shall not prior to the Closing Date and except Date: (i) change its corporate management structure; (ii) increase or decrease its registered capital or share capital; (iii) declare, make or pay any dividend or other distribution or do or allow to be done anything which renders its financial position less favorable than at the date of this Agreement; (iv) incur any capital expenditures or any obligations or liabilities or any supply credit; (v) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses; (vi) sell, lease or otherwise transfer, or create or incur any Encumbrance on, any of its equity interests, assets, properties, interests or businesses; (vii) make any loans, advances or capital contributions to, or investments in, any other Person; (viii) create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees; (ix) change any consent that has been obtained in connection with the Formation Transactionsconstruction and operation of the Data Center, or conduct any other act that may cause such consent to change or be affected (except for the de-registration of value-added telecommunication business license for the purpose of satisfying the Conditions Precedent); (x) do any act or thing which may result in any material change in its nature or scope of the operations; (xi) enter into any agreement or arrangement that limits or otherwise restricts it or any successor to it or that could, after the Closing, limit or restrict it, the SPE shall not Purchaser or any Affiliates of the Purchaser, from engaging or competing in any line of business, in any location or with any Person; (and shall not permit xii) sign, modify, amend or terminate any contract (other than for the purpose of satisfying the Conditions Precedent); (xiii) delay making payment of any trade debt beyond the date of expiry of the credit period authorized by the relevant creditors (or (if different) the period extended by creditors in which to make payment); (xiv) settle, or offer or propose to settle, (1) any litigation, investigation, arbitration, proceeding or other claim involving or against it, (2) any shareholder litigation or dispute against it or any of its officers or directors or (3) any litigation, arbitration, proceeding or dispute that relates to the SPE Subsidiaries totransactions contemplated hereby; (xv) without change the prior written consent policies and methods of accounting, except as required by concurrent changes in the PRC GAAP; and (xvi) do any act or thing that would have Material Adverse Effect on the operation or financial condition of the REIT: (a) (i) declare, set aside Target Company and/or Target Company Subsidiary; The Parties agree that the Purchaser shall indemnify the Target Company or pay any distributions the Target Company Subsidiary in respect of any loss suffered by the Target Company or the Target Company Subsidiary as a result of the SPE LLC InterestsPurchaser’s failure to consent. (3) From the Signing Date to the Closing Date, except the Sellers shall not: (i) dispose of any interest in the ordinary course Sellers’ Shares or do any act or thing that may subject the Sellers’ Shares to any Encumbrance; (ii) pass any resolution or matter that is or will be in violation to this Agreement; and (iii) do or omit to do or cause or allow to be done or omitted to be done any act or thing which would result (or be likely to result) in a breach of business consistent with past practice any of the Warranties if the Warranties were repeated at the Closing Date. 7.2 The Sellers, the Target Company and the Target Company Subsidiary shall procure that the Purchaser, their agents and representatives are given full access to the assets, operation and books and records of the Target Company and the Target Company Subsidiary from the Signing Date of this Agreement to the Closing Date. The Sellers, Target Company and Target Company Subsidiary shall provide such information regarding the businesses and affairs of the Target Companies as the Purchaser may require. 7.3 After the Signing Date, the Seller, the Target Company and the Target Company Subsidiary shall make reasonable efforts to assist the counterparty of the contract to which the Target Company and/or the Target Company Subsidiary is a party to continue to perform the contract in accordance with the SPE LLC Agreementterms and conditions of such contract and cooperate before the Closing Date to meet reasonable requirements of the Purchaser on maintaining the normal operation of the Target Company and the Target Company Subsidiary after the Closing Date, including without limitation, to procure the counterparty of the contract with payment obligation to the Target Company and/or the Target Company Subsidiary to cooperate with the Purchaser to complete the relevant vendor audit process (ii) issue or authorize including without limitation, to provide the issuance information of such counterparty, fill in the form, require the vendor to sign the letter of commitment and integrity agreement, etc., for the purpose of anti-corruption audit.). 7.4 The Sellers shall notify the Purchaser in writing of any other securities changes or potential changes in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, or information set forth in the Warranties as attached hereto as Exhibit C within five (iii5) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests Business Days from the time when the Sellers are aware of any of such changes or potential changes. 7.5 The Parties agree that, from the SPE Subsidiaries Signing Date to the Closing Date, if the Target Company and/or the Target Company Subsidiary change any Consent related to the construction and operation of the Data Center that has been obtained by the Target Company without the Purchaser’s prior written consent, or engage in any other securities thereof;act that may cause such Consent be changed or be affected (except for the de-registration of value-added telecommunication business license for the purpose of satisfying the Condition Precedent), the Sellers shall immediately terminate such breach and ensure the restoration of such Consent. (b) issue7.6 The Parties agree that prior to the Closing Date, deliverthe Sellers and the Target Company shall continue to be responsible for all work related to the operation of the Data Center, sellunless otherwise required by the Purchaser in writing. In the event that the Purchaser or the Purchaser’s designated Affiliates suffer any loss before the Closing Date due to reasons related to the operation of the Data Center, transferthe Sellers undertake to bear corresponding liability for compensation to the Purchaser, dispose, mortgage, pledge, assign except that such loss is caused by the Purchaser or otherwise encumber, or cause force majeure. 8.1 General Covenant after the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or Closing All Parities covenant to continue fully performing any of their obligations and undertakings set out in this Agreement, including without limitation, to comply with PRC anti-corruption related laws and U.S Foreign Corrupt Practices Act during the SPE Subsidiaries or any other assets process of fulfilling the SPE or SPE Subsidiaries; (c) amendforegoing obligations and undertakings, modify or terminate any lease, contract or other instruments relating and to provide all necessary assistance and cooperation to give effect to such obligations and undertakings after the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or Closing. The Parties further agree to take any execute, make, acknowledge, and deliver such instruments, agreements and other documents as may be reasonably required or mandatory under the Applicable Law to effectuate the purposes of the foregoing actionsthis Agreement.

PRE-CLOSING COVENANTS. During (a) From the period date hereof until the earlier of the termination of this Agreement in accordance with Section 8.3 and the Closing, (i) SKS 1 shall, and shall cause the Transferred Subsidiary to, conduct their respective businesses in the Ordinary Course of Business and (ii) SKS shall conduct its business in the Ordinary Course of Business as it related to the Company Business. Without limiting the foregoing, from the date hereof until the Closing Date, except as HoldCo may otherwise agree in writing or as required by applicable Law or as set forth on Schedule 7.1 attached hereto, none of the Companies or the Transferred Subsidiary shall: (i) pay any dividend in property other than cash or otherwise distribute or transfer any non-cash property to the Closing Date Controlling Members (except for the Excluded Assets); (ii) (A) with respect to SKS 1 and the Transferred Subsidiary, purchase any material assets or dispose of any material assets and (B) with respect to SKS, purchase any material assets or dispose of any material assets that are related to or constitute a portion of the Company Business; (iii) transfer to any Person or grant any rights to any Company Intellectual Property; (iv) enter into any Contract or amend, terminate or grant any rights under any Assigned Contract; (v) mortgage, pledge or subject to any Lien any of the Contributed Assets; (vi) adopt or approve any Employee Plan, or any amendment, modification, rescission, termination or other change to any existing Employee Plan; (vii) increase the salary, bonus or other compensation, whether monetary or otherwise, payable or to become payable to any director or employee of any Company or change or enter into any employment or consulting agreement with any such person (other than with respect to new hires or promotions of non-officer employees in the Ordinary Course of Business; provided the SKS Parties provide prompt notice of such action to HoldCo); (viii) make any payment to any officer, director or Affiliate other than compensation consistent with such Person’s compensation during the period from January 1, 2013 through the Closing Date, other than payments required to be made pursuant to a written contract that was in effect on the Closing Date; (ix) amend their respective operating agreements or other operative charter documents except as contemplated hereby; or (x) (A) with respect to SKS 1 and the Transferred Subsidiary, make or agree to make any capital expenditures or commitments for any capital expenditures and (B) with respect to SKS, make or agree to make any capital expenditures or commitments for any capital expenditures that are related to the Company Business. (b) From and after the date hereof until the earlier of the termination of this Agreement in accordance with Section 8.3 or the Closing Date, each Company shall (i) provide HoldCo and its officers, directors, employees, attorneys, accountants, consultants, agents and other authorized representatives with reasonable access, at reasonable times and upon reasonable notice to the Companies, to the offices, properties, personnel, books and records of the Companies, (ii) furnish promptly to HoldCo and its representatives such information concerning the business, properties, contracts, assets, liabilities, personnel and other aspects of the Companies as may be reasonably requested and (iii) cooperate with HoldCo in (A) making all filings with and providing all required notices to all applicable regulatory agencies, (B) obtaining all requisite approvals to the transactions contemplated hereby from the California Liquor Control Commission and any other applicable Governmental Entity in order to permit Ohr LLC to continue to operate the Company Business following the Closing in the same manner as such businesses are currently conducted and (C) obtaining all of the consents required pursuant to Section 8.1(d). The access to personnel and information contemplated by this Section 7.1(b) shall be during normal business hours and upon reasonable prior notice and shall be subject to such reasonable limitations as the Companies may impose to preserve the confidentiality of information contained therein. (c) From and after the date hereof until the earlier of the termination of this Agreement in accordance with Section 8.3 or the Closing Date, the Ohr Parties shall not, except as the SKS Parties may otherwise provided agree in writing or as required by applicable Law, (i) amend its certificate of incorporation or bylaws in a manner that would materially and adversely affect the economic benefits of the Companies or its equity holders under this Agreement, (ii) set any record or payment dates for the payment of any extraordinary dividends or distributions on its capital stock or make, declare or pay any securities or obligations convertible into or exchangeable for any shares of its capital stock, (iii) take any action or fail to take any action that would reasonably be expected to materially impair or delay the consummation of the transactions contemplated by this Agreement or in connection with the Formation Transactions), the SPE shall use commercially reasonable efforts to (and to cause each of the SPE Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REIT: (a) (i) declare, set aside or pay any distributions in respect of any of the SPE LLC Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (jiv) authorize, commit recommend, agree, make any commitment or agree announce an intention to take any of the foregoing actionsactions prohibited by this Section 7.1(c). (d) Except (i) as provided for in clause (vii) of the definition of “Excluded Assets” and (ii) such records as may be reasonably necessary to perform their obligations hereunder (including to discharge any Excluded Liabilities), and then only during such period as such reasonable necessity exists, the Companies shall deliver and shall not retain after Closing any copies (in electronic or other form) of information that constitutes any part of the Contributed Assets. Subject to HoldCo’s consent, nothing in this Section 7.1(d) shall prohibit the Controlling Members or any Transferred Employees from retaining copies of any information reasonably related to the provision of services to any of the Ohr Parties following the Closing.

PRE-CLOSING COVENANTS. During a) At all times during the period between the execution of this Agreement and the Closing, each Seller and the Company shall do (or refrain from doing) the following: i) continue to operate the Company’s business in the same manner as the business was operated prior to the date hereof of this Agreement, and the Sellers who are employees of the Company shall devote One Hundred Percent (100%) of their working time and attention to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE shall use commercially reasonable efforts to (and to cause each conduct of the SPE Subsidiaries tobusiness; ii) conduct not start any new business, or accept or undertake any employment or provide any services related to any business of any other person or entity (other than in the Company’s ordinary course of business); iii) not remove, sell or otherwise dispose of any assets, property or equipment of any nature of the Company used in the business, except for the sale of its businesses products, inventory and operate equipment and maintain the Properties payment of payables and other obligations in the ordinary course of business consistent with past practice custom and use commercially reasonable efforts practice; iv) not allow any unlawful activity known to preserve intact Sellers to be conducted on or about the premises upon which the business is conducted or at any other place where business activity is being conducted by the Company; v) maintain its current business organizations general liability and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality property insurance carried as of the foregoingdate hereof; vi) not change, during alter or revise its employee manual (if any) for the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE shall not (and shall not permit any employees of the SPE Subsidiaries toCompany; vii) without the prior written consent not purchase any equipment out of the REIT: (a) (i) declare, set aside or pay any distributions in respect of any of the SPE LLC Interests, except in the ordinary course of business consistent with past practice custom and practice; viii) not grant any options or warrants in accordance with Common Stock of the SPE LLC AgreementCompany, (iinor issue any additional Common Stock or Preferred Stock of the Company; ix) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or not make any distributions of cash, property or other changes dividends to the equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereofSellers; (bx) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause pay the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests attorneys and accountants or other equity interests consultants fees for their reasonable work in connection with this Agreement and the related transactions described herein; and xi) continue to make payments to third parties in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary normal course of business consistent with past custom and practice; (d) amend its certificate , including, without limitation, to suppliers, on leases, and the payment of formation employee wages and payroll type taxes and estimated or final payments with respect to federal and state income or franchise and sales taxes, including establishing an escrow for taxes due with respect to periods prior to the SPE LLC Agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actionsClosing.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for Except expressly contemplated or contemplated permitted by this Agreement or in connection with the Formation Transactions), the SPE shall use commercially reasonable efforts to (and to cause each of the SPE Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoingAgreement, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactionspre-closing period, the SPE CREH shall not (not, and shall not permit any of the SPE Subsidiaries to) CREH, CCRE or and CCRE Subsidiary to (without the prior written consent of the REIT:Triple Acet, which consent shall not be unreasonably withheld): (a) (iA) declare, accrue, set aside or pay any distributions dividend or make any other distribution in respect of any shares of the SPE LLC Interestscapital stock, except in the ordinary course or (B) repurchase, redeem or otherwise reacquire any shares of business consistent with past practice and in accordance with the SPE LLC Agreement, capital stock or other securities; (ii) sell, issue, grant, pledge or otherwise encumber or authorize the sale, issuance, grant, pledge or encumbrance of: (A) any capital stock or other security; (B) any option, call, warrant or right to acquire any capital stock or other security; or (C) any instrument convertible into or exercisable or exchangeable for any capital stock or other security; (iii) amend or permit the adoption of any amendment to its articles of incorporation or bylaws of CREH, CCRE or any CCRE Subsidiary y; (iv) adjust, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests shares of its capital stock; (v) authorize or make any other changes commitment with respect to the equity any capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereofexpenditure; (bvi) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except than in the ordinary course of business and consistent with past practicepractices, amend, terminate (other than expiration in accordance with its terms) or waive any material right or remedy under, any Contract; (dvii) amend its certificate other than the renewal or extension of formation or the SPE LLC Agreementany such contract on substantially similar terms, enter into any contract; (eviii) adopt a plan acquire, lease or license any right or other asset from any other Person or sell or otherwise dispose of, or lease or license, any right or other asset to any other Person (except in each case for any right or asset: (A) acquired, leased, licensed or disposed of liquidation, dissolution, by CREH in the ordinary course of business and consistent with past practices and not in an aggregate amount of more than $1,000; or (B) that is not material to the business of CREH or CCRE); (ix) acquire (including by merger, consolidation, restructuringacquisition of stock or assets or any other business combination) any business or any corporation, recapitalization partnership, association or reorganizationother business organization or division thereof that is material to CREH or CCRE; (fx) materially alter the manner make any pledge of keeping such SPE any of its material assets or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflectedpermit any of its material assets to become subject to any Encumbrances; (gxi) file an entity classification election pursuant lend money to Treasury Regulation Section 301.7701any Person, or incur, guarantee assume or otherwise become responsible for any indebtedness in excess of $50,000 in the aggregate; (xii) establish, adopt, enter into or amend any Employee Plan or Employee Agreement, pay any bonus or make any profit-3(csharing or similar payment to, or increase the amount of the wages, salary, commissions, fringe benefits or other compensation (including equity-based compensation, whether payable in stock, cash or other property) on Internal Revenue Service Form 8832 or remuneration payable to, any CREH or CCRE Employees; (Entity Classification Electionxiii) to treat hire any employee; (xiv) other than in the SPE ordinary course of business and consistent with past practices or as required by concurrent changes in GAAP or SEC rules and regulations, change any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; methods of accounting or accounting practices in any material respect; (A) make or change any other material Tax elections; settle or compromise any claimelection, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; (B) enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement settlement or closing agreement relating to compromise of any Tax; material Tax liability or (C) surrender of any right to claim a material Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (hxvi) terminate prepare or amend file any existing insurance policies affecting the Property Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election or adopt any method that results is inconsistent with positions taken, elections made or methods used in a material reduction preparing or filing similar Tax Returns in insurance coverage for the Propertyprior periods; (ixvii) knowingly cause settle or permit compromise any pending or threatened suit, action, claim, arbitration, mediation, inquiry, Legal Proceeding or investigation, unless in connection with such settlements or compromises (A) there is no finding or admission of any violation of any Legal Requirement or the SPE rights of any Person and (B) the sole relief provided is monetary damages not in excess of $1,000 in the aggregate; (xviii) enter into any material Contract that requires the consent or approval of any Person to violateconsummate the Contemplated Transactions; (xix) enter into a new, or fail amend in any material respect any existing, transaction, agreement, arrangement or understanding; or (xx) agree or commit to take any of the actions described in clauses “(i)” through “(xx)” of this Section. If CREH desires to take an action that requires the prior written consent of Triple Ace pursuant to this Section, which consent shall not be unreasonably withheld, CREH shall deliver to Triple Ace a written request for such written consent. Triple Ace shall use commercially reasonable efforts to cure approve or deny CREH’s request as soon as reasonably practicable, and in any violation ofevent within two business days after Triple Ace has received CREH’s request. If CREH receives no such consent or denial within two business days after Triple Ace has received CREH’s request, any applicable Laws; or (j) authorize, commit or agree Triple Ace shall be deemed to take any of have granted its consent to the foregoing actionsaction set forth in such request.

PRE-CLOSING COVENANTS. During 4.1 Conduct of Business by the period from Company. From the date hereof to the Closing Date (except as otherwise provided for or contemplated by of this Agreement or until the Closing, unless Buyer otherwise agrees in connection with the Formation Transactions)writing, the SPE shall use commercially reasonable efforts to Company will, and the Members will cause the Company to: (and to cause each of the SPE Subsidiaries toa) conduct its businesses and operate and maintain the Properties operations in the ordinary course of business; (b) preserve intact its corporate existence and business consistent with past practice and organization; (c) use its commercially reasonable efforts to preserve intact its current the goodwill and present business organizations and preserve its relationships (contractual or otherwise) with all customers, tenants, suppliers, advertisers resellers, employees, licensors, distributors and others having business dealings relationships with it; (d) use its commercially reasonable efforts to keep available the services of its current officers, managers, employees and consultants; (e) use its commercially reasonable efforts to preserve in each case consistent all material respects its present properties and its tangible and intangible assets; (f) comply in all material respects with past practiceall applicable Laws and Material Contracts; (g) pay all applicable Taxes as such Taxes become due and payable; and (h) maintain all existing licenses and permits applicable to its operations and businesses. In addition, and without Without limiting the generality of the foregoing, during and as an extension thereof, except as set forth on Schedule 4.1 or as expressly permitted by any other provision of this Agreement, the period Company will not, and the Members will cause the Company not to, from the date hereof of this Agreement until the Closing, directly or indirectly, do, or agree to the Closing Date and except in connection with the Formation Transactionsdo, the SPE shall not (and shall not permit any of the SPE Subsidiaries to) following without the prior written consent of the REITBuyer: (a) (i) declaresell, set aside lease, license (as licensor), assign, dispose of or pay any distributions in respect of transfer (including transfers to any of the SPE LLC InterestsCompany’s Affiliates) any of its assets (whether tangible or intangible); (ii) mortgage, except pledge or subject to any Lien any portion of its properties or assets, other than Permitted Liens; (iii) commit to make or authorize any capital expenditure in excess of $5,000; (iv) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest in any Person or any division thereof or any assets, other than acquisitions of assets in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereofbusiness; (bv) incur any Indebtedness or assume, guarantee or endorse the obligations of any Person; (vi) enter into, amend, modify, accelerate or terminate any Material Contract or Employee Benefit Plan; (vii) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance dispose of, encumber or transfer any limited liability companyUnits, partnership interests equity securities, securities convertible, exchangeable or exercisable into Units or other equity interests in the SPE securities, or any warrants, options or other rights to acquire Units or other equity securities of the SPE Subsidiaries or any other assets of the SPE or SPE SubsidiariesCompany; (cviii) amenddeclare, modify set aside, or terminate distribute any lease, contract dividend or other instruments relating distribution (whether payable in cash, Units, property or a combination thereof) with respect to any of its Units (or other equity securities), or enter into any agreement with respect to the Propertyvoting of its capital stock (or other equity securities); (ix) reclassify, except combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock (or other equity securities); (x) waive, release, assign, settle or compromise any material rights or claims, or any material litigation or arbitration; (xi) disclose any trade secrets (including source code for any Company Product) or other proprietary and confidential information to any Person that is not subject to any confidentiality or non-disclosure agreement; (xii) (A) increase the compensation or benefits payable or to become payable to any director, officer or other employee of the Company (other than in the ordinary course of business consistent with past practicebusiness); (B) grant any rights to severance, retention, change in control, termination or similar pay to, or enter into any employment, consulting, retention, change in control, termination, severance or similar agreement with, any director, officer or other employee of the Company, or establish, adopt, enter into, amend or terminate any Employee Benefit Plan, except to the extent required by applicable Law; (C) take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Employee Benefit Plan; (D) appoint, hire, promote or terminate any officer, director or Essential Employee; or (E) enter into any collective bargaining agreement; (dxiii) amend its certificate of formation make loans or advances to, guarantees for the SPE LLC Agreementbenefit of, or any investments in, any Person; (exiv) adopt a plan forgive any loans to directors, officers, employees or any of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganizationtheir respective affiliates; (fxv) materially alter the manner of keeping such SPE make any change in accounting policies, practices, principles, methods or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflectedprocedures; (gxvi) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c(A) on Internal Revenue Service Form 8832 accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business; (Entity Classification ElectionB) to treat the SPE delay or accelerate payment of any account payable in advance of its Subsidiaries as an association taxable due date or the date such liability would have been paid in the ordinary course of business; (C) make any changes to cash management policies; (D) delay or postpone the repair or maintenance of their properties; or (E) vary any inventory purchase practices in any material respect from past practices; (xvii) write up, write down or write off the book value of any assets, individually or in the aggregate, for the Company taken as a corporation for United States federal income tax purposes; make whole; (xviii) make, change or change revoke any other material Tax electionselection; settle or compromise any claim, notice, audit report or assessment in respect of material Taxes; change any annual Tax accounting period; , or adopt or change any method of Tax accounting; file any amended material Tax returnReturn; enter into any tax Tax allocation agreement, tax Tax sharing agreement, tax Tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a material Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment; (hxix) take any action for the winding up, liquidation, dissolution or reorganization of the Company or for the appointment of a receiver, administrator or administrative receiver, trustee or similar officer of its assets or revenues; (xx) amend the Company’s charter documents, bylaws or similar governing documents; (xxi) layoff or terminate or amend any existing insurance policies affecting the Property employees that results could result in a material reduction in insurance coverage for liability under the PropertyWARN Act; (ixxii) knowingly cause fail to keep in force insurance policies or permit replacement or revised provisions providing insurance coverage with respect to the SPE assets, operations and activities of the Company as are currently in effect; (xxiii) take or omit to violatetake any action that which, individually or in the aggregate, could reasonably be expected to result in any representation or warranty of the Company to be untrue, result in a breach of any covenant made by the Company in this Agreement, would require disclosure pursuant to Section 4.4, or fail could reasonably be expected to use commercially reasonable efforts to cure result in any violation of, any applicable Lawscondition set forth in Section 6.1 not being satisfied; or (jxxiv) authorize, agree or commit or agree to take do any of the foregoing actionsforegoing.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation TransactionsAgreement), the SPE DST shall use commercially reasonable efforts to (and to cause each of the SPE Subsidiaries to) conduct its businesses business and operate and maintain the Properties its properties in the ordinary course of business consistent with past practice practice, pay its debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers suppliers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation TransactionsDate, the SPE DST shall not (and shall not permit any of the SPE Subsidiaries to) not, without the prior written consent of the REITOperating Partnership, which consent may be withheld by the Operating Partnership in its sole discretion: (a) (i) other than distributions to holders required by the DST Agreement, declare, set aside or pay any dividends or distributions in respect of any of the SPE LLC DST Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC AgreementOrganizational Documents, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC DST Interests or make any other changes to the equity capital structure of the SPE or any SPE SubsidiaryDST, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereofDST Interests; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries DST Interests or any other assets of the SPE or SPE SubsidiariesDST; (c) amend, modify or terminate any lease, contract or other instruments relating to the Propertyany property owned by DST, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC AgreementOrganizational Documents; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE SubsidiaryDST’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property any property owned by DST that results in a material reduction in insurance coverage for the Propertysuch property; (i) knowingly cause violate or permit the SPE to violateviolation of, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actions.

PRE-CLOSING COVENANTS. During the period from From and after the date hereof and until the 2nd Closing, unless Micron shall have given its prior written consent for the Company to do otherwise, the Company shall not take, and neither NTC nor Qimonda shall exert their influence, through the voting of Company securities or otherwise, to cause the Company to take, any of the following actions (provided, however, that nothing in this Agreement shall require any member of the Board of Directors of the Company to violate his or her duties to the Closing Date (except as otherwise provided for Company under applicable corporate or contemplated by this Agreement or in connection with other Laws): a. operate the Formation Transactions), the SPE shall use commercially reasonable efforts to (and to cause each business of the SPE Subsidiaries to) conduct its businesses and operate and maintain the Properties Company other than in the ordinary and usual course of normal day to day operations of such business consistent with past practice and use commercially reasonable efforts as conducted prior to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof (the “Ordinary Course of Business”) or fail to the Closing Date and except in connection with the Formation Transactions, the SPE shall not (and shall not permit any maintain all of the SPE Subsidiaries to) without the prior written consent facilities, assets and properties of the REIT:Company in their condition as of the date hereof, normal wear and tear excepted; (a) b. eliminate or reduce the insurance coverage of the Company’s facilities, assets, properties or interests; (i) declare, set aside or pay any distributions in respect of any of disrupt the SPE LLC Interests, except in the ordinary course of Company’s business consistent with past practice and in accordance with the SPE LLC Agreementorganizations, (ii) issue or authorize terminate the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure services of the SPE or any SPE SubsidiaryCompany’s present employees and other service providers, or (iii) purchaseterminate the Company’s present relationships with its material vendors, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any suppliers and customers and other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries or any other assets of the SPE or SPE Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of Persons having business consistent relationships with past practice; (d) amend its certificate of formation or the SPE LLC Agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Propertyit; (i) knowingly cause solicit, encourage, cooperate with or facilitate (by way of furnishing information or otherwise) any inquiries or proposals (other than the transaction contemplated hereby) for the acquisition of the stock, assets or business of the Company or (ii) acquire any material assets, properties or interests other than in the Ordinary Course of Business; e. merge or consolidate with any other Person, amend or modify its organizational documents or effect any issuance of securities, stock split, reverse stock split or reclassification; f. enter into, or become obligated under, any material Contract; g. terminate or change, amend or otherwise modify any material Contract; h. take any action to implement, or decide to implement in the future, any material technology or process not in use by the Company on the date hereof; i. incur or guarantee any indebtedness or suffer or permit the SPE creation of any Lien outside the Ordinary Course of Business upon any facilities, assets, properties or interests of the Company; j. retain or hire any new senior management employee, increase or otherwise change the rate or nature of compensation and benefits (including wages, salaries and bonuses and benefits under pension profit sharing, deferred compensation and other employee benefit plans and programs) which is paid or payable to violateany employee of the Company or enter into or amend any employment, consulting or similar Contract, in each case outside the Ordinary Course of Business; k. release, settle or compromise any material claim, or fail to use commercially reasonable efforts to cure waive any violation ofmaterial right, of the Company or settle or compromise any applicable Lawspending or threatened material claim against the Company; orand (j) authorize, commit or l. agree to take any action which would breach or violate any of the foregoing actionsclauses a. through k. of this Section 1.3.

PRE-CLOSING COVENANTS. During the period Except as required by applicable Law, Judgment or to comply with any notice from the date hereof to the Closing Date (except a Governmental Authority, as otherwise provided for expressly contemplated, required or contemplated permitted by this Agreement or in connection with the Formation Transactions), the SPE shall use commercially reasonable efforts to (and to cause each of the SPE Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoingAgreement, during the period from the date hereof to of this Agreement until the Initial Closing Date (or such earlier date on which this Agreement may be terminated pursuant to Section 7.01), unless the Purchasers otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned) the Company shall, and except shall cause its Subsidiaries to, use their commercially reasonable efforts to operate their businesses in connection with all material respects in the Formation Transactionsordinary course and, unless the Purchasers otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), the SPE Company shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REITnot: (a) (i) declare, set aside or pay any distributions in respect of any other than the authorization and issuance of the SPE LLC InterestsClass A Common Stock to the Purchasers and the consummation of the other Transactions, except in issue, sell or grant any shares of its capital stock, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution right to subscribe for any SPE LLC Interests or make any other changes to the equity shares of its capital structure of the SPE stock, or any SPE Subsidiaryrights, warrants or (iii) purchase, redeem or otherwise acquire options to purchase any SPE LLC Interests or member interests shares of any of the SPE Subsidiaries or any other securities thereofits capital stock; (b) issueredeem, deliver, sell, transfer, dispose, mortgage, pledge, assign purchase or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, acquire any limited liability company, partnership interests of its outstanding shares of capital stock or other equity interests in the SPE or voting interests, or any rights, warrants or options to acquire any shares of the SPE Subsidiaries its capital stock or any other assets of the SPE equity or SPE Subsidiariesvoting interests; (c) amendestablish a record date for, modify declare, set aside for payment or terminate pay any leasedividend on, contract or make any other distribution in respect of, any shares of its capital stock or other instruments relating to the Property, except in the ordinary course of business consistent with past practiceequity or voting interests; (d) amend split, combine, subdivide or reclassify any shares of its certificate of formation capital stock or the SPE LLC Agreement;other equity or voting interests; or (e) adopt amend (other than through the filing of a plan proxy statement to have its shareholders at a special meeting authorize the Certificate of liquidation, dissolution, merger, consolidation, restructuring, recapitalization Amendment subsequent to the Initial Closing but prior to the Subsequent Closing) or reorganization; (f) materially alter supplement the Company Charter Documents in a manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or that would affect the accounting practices therein reflected; (g) file Purchasers in an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable adverse manner either as a corporation for United States federal income tax purposes; make holder of Class A Common Stock or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in with respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver the rights of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actionsPurchasers under this Agreement.

PRE-CLOSING COVENANTS. During the period (a) The Seller shall ensure that from the date hereof to the of this Agreement until Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE shall use commercially reasonable efforts to (and to cause business of each of the SPE Subsidiaries to) conduct its businesses and operate and maintain the Properties Company is carried on in the ordinary and usual course and in compliance with the Law and that neither Company shall enter into any contract or commitment or do anything which, in any such case, is out of the ordinary and usual course of its business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, without the prior consent in each case consistent with past practicewriting of the Buyer. In additionparticular, and but without limiting the generality foregoing, the Seller shall procure that from the date of this Agreement until Closing, save with the prior consent in writing of the Buyer, none of the Companies shall: (i) change or alter their corporate structure or amend its Organizational Documents or other governing documents (save as and if necessary to covert the Seller Shares into the Preferred Shares), or initiate or undertake their liquidation or dissolution, change its charter capital (save as and if necessary to covert the Seller Shares into the Preferred Shares) or grant Liens, any options or rights in respect of equity interest in any member of any Company; (ii) enter into any agreement or arrangement or permit any action whereby any Company assumes liability (actual or contingent) for the amount in excess of USD 10,000; (iii) dispose of or enter into any agreement to dispose of (whether by one transaction or by a series of transactions) the whole or any substantial or material part of its business, undertaking or assets; (iv) mortgage, pledge or subject to any Lien (other than Permitted Liens, notified to the Buyer), any of its assets, properties or business; (v) commence, compromise or discontinue any legal or arbitration proceedings (other than routine debt collection); (vi) enter into any transaction or undertake an action which may result in breach of the Seller’s warranties under Article V; (vii) agree, in writing or otherwise, to do any of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REIT: (a) (i) declare, set aside or pay any distributions in respect of any of the SPE LLC Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiary, or (iii) purchase, redeem or otherwise acquire any SPE LLC Interests or member interests of any of the SPE Subsidiaries or any other securities thereof;. (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign The Seller shall forthwith disclose in writing to the Buyer any matter or otherwise encumber, thing which may arise or cause become known to either of the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in Seller after the SPE or Execution Date and before Closing Date which is inconsistent with any of the SPE Subsidiaries warranties or which might make any other assets of them inaccurate or misleading if they were given at any and all times from the SPE or SPE Subsidiaries;Execution Date hereof down to Closing Date. (c) amendThe Seller and the Buyer agree that the FAS Approval shall be obtained, modify or terminate any leaseand all requests and enquiries from the FAS shall be dealt with at the Buyer’s expense, contract or by the Seller and the Buyer in consultation with each other instruments relating and the Seller and the Buyer shall co-operate with each other and provide all reasonably necessary information and assistance required by the other as soon as reasonably practical upon being requested to do so. The Seller shall provide the Property, except in Buyer with all necessary information and documents required for the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s books, accounts or records or the accounting practices therein reflected; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver obtaining of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (i) knowingly cause or permit the SPE to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree to take any of the foregoing actionsFAS Approval.

PRE-CLOSING COVENANTS. During Unless Newport or Buyer gives its prior written consent for actions to be taken to the period contrary, except as contemplated by the Reorganization Activities, from the date hereof to Effective Date and until the Closing Date or the termination of this Agreement, whichever first occurs, Sellers shall cause the Companies and the Subsidiaries to: (except as otherwise provided for or contemplated by this Agreement or in connection with a) Operate and conduct the Formation Transactions), the SPE shall use commercially reasonable efforts to (respective business and to cause each operations of the SPE Companies and the Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practicepractices. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE Neither Parent nor any Company nor any Subsidiary shall not (and shall not permit any of the SPE Subsidiaries to) without the prior written consent of the REIT: (a) (i) declare, set aside increase or pay any distributions allow an increase in respect the compensation or benefits of any employee, independent contractor or agent of any Company or any Subsidiary (other than those listed in Section 4.15(f) of the SPE LLC InterestsSP Disclosure Schedule), except in the ordinary course of business, (ii) adopt or allow the adoption of any new commission plan or arrangement or any employee benefit plan or arrangement of any Company or any Subsidiary (except for actions by Parent relating to plans adopted by Parent for its employees generally), (iii) amend or allow the amendment of, any commission plan or arrangement or any employee benefit plan or arrangement of any Company or any Subsidiary existing on the Effective Date (except for actions by Parent relating to plans maintained by Parent for its employees generally), (iv) lend or advance or allow the lending or advancement of any sum to any employee or director of any Company or any Subsidiary except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreement, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Interests or make any other changes to the equity capital structure of the SPE or any SPE Subsidiarypractices, or (iiiv) purchase, redeem extend or otherwise acquire allow the extension of credit to any SPE LLC Interests employee or member interests director of any of the SPE Subsidiaries Company or any other securities thereofSubsidiary except in the ordinary course of business consistent with past practices; (b) issuePreserve intact each Company’s and each Subsidiary’s respective organization, deliverand use their commercially reasonable efforts to (i) retain, sellin the ordinary course of business consistent with past practices, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance all employees of, any limited liability companyand the services of all vendors, partnership interests or suppliers, agents and consultants of, the Companies and the Subsidiaries, commensurate with the requirements of their respective businesses (other equity interests than those employees who have been identified on Schedule 6.1 hereto as not transferring with the Business) and (ii) assist Newport in the SPE or any negotiation of agreements to replace those vendor agreements listed on Section 4.23(d) of the SPE Subsidiaries or any other assets of SP Disclosure Schedule relating to the SPE or SPE materials and components currently purchased by the Companies and Subsidiaries; (c) amend, modify or terminate any lease, contract or other instruments Except for actions by Parent relating to insurance maintained by Parent for its businesses generally, maintain the PropertyCompany’s and each Subsidiary’s respective insurance consistent with past practices and, except unless comparable insurance is substituted therefor or is not generally available to the respective businesses of the type conducted by the Companies and the Subsidiaries, not take any action to terminate or modify, nor permit the lapse or termination of, the respective insurance policies and coverages of the Companies and the Subsidiaries as set forth in Section 4.19 of the SP Disclosure Schedule; (d) Promptly notify Newport of all lawsuits, claims, proceedings or investigations that are brought, asserted or commenced, or which any of the respective officers and directors of Parent, any Company or any Subsidiary have reason to believe may be brought, asserted or commenced, against any Company or any Subsidiary or any of their respective officers or directors, involving or affecting in any way the respective businesses, operations, or assets of any Company or any Subsidiary, or the transactions contemplated by this Agreement; and not settle any action or proceeding which would have a Company Material Adverse Effect, and not release, settle, compromise or relinquish any claims, causes of action or rights where the amount in controversy is greater than Two Hundred Fifty Thousand Dollars ($250,000) which a Company or a Subsidiary may have against any other persons, including, without limitation, claims or rights to reimbursement or payment for services rendered or products sold by a Company or a Subsidiary; (e) Not enter into any agreements providing for or permitting, any of the material assets or properties of any Company or any Subsidiary to be subjected to any Lien other than with respect to the pledge of promissory notes from the Subsidiary in Japan to secure borrowings from banks in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreement; (e) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (f) materially alter the manner of keeping such SPE or SPE Subsidiary’s booksMaintain in good working order and condition consistent with past practice, accounts or records or the accounting practices therein reflectedordinary wear and tear excepted, and in compliance in all material respects with all Applicable Laws, all Fixed Assets; (g) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(cObserve and perform all terms, conditions, covenants and obligations contained in all Material Contracts, the violation of which would have, individually or in the aggregate, a Company Material Adverse Effect; and, except as required by any existing agreements, (i) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax return; not enter into any tax allocation agreementnew agreement that would constitute a Material Contract or renew, tax sharing agreementextend, tax indemnity agreement amend or closing agreement relating modify any Material Contract (other than, in any such case, customer, development, distribution and/or supply agreements entered into in the ordinary course of business), (ii) make any expenditure (other than payment of trade payables in the ordinary course of business consistent with past practices) in excess of $100,000 individually, or (iii) not take any action which would cause a material breach or violation of or material default under any Material Contract, or under any permit, license, franchise, judgment, writ or order, applicable to or affecting any Tax; surrender Company or any Subsidiary or its respective business, and promptly notify Newport and Buyer in writing of the occurrence of any right to claim a Tax refund; such breach or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessmentdefault; (h) terminate Use commercially reasonable efforts to obtain and maintain all consents, assignments or amend approvals of, and licenses, permits and franchises and rights to operate granted by, Governmental Entities and other third parties, the absence or loss of which would have a Company Material Adverse Effect either prior to or following the Closing; and not take any existing insurance policies affecting the Property that results action which would result in a violation of or the noncompliance with, any Applicable Laws or any conditions imposed on any Company or any Subsidiary under any of its permits, franchises, contracts or licenses, where such violation or non-compliance could have a Company Material Adverse Effect, or result in the incurrence of any material reduction liability by any Company or any Subsidiary or in insurance coverage the revocation, modification or loss of any material license, permit or right needed for the Propertyoperation of the respective businesses of any Company or any Subsidiary as presently conducted, or which would adversely affect the obtaining of government approvals needed for Buyer’s acquisition of the Shares; and cooperate with Buyer and render to Buyer such assistance as Buyer may reasonably request in obtaining such governmental approvals; (i) knowingly cause Except with respect to Taxes being contested in good faith, pay, when due, and prior to the imposition or permit assessment of any interest, penalties or liens by reason of the SPE non-payment of, all Taxes assessed against any Company or any Subsidiary, any of their respective assets or operations, and not make, revoke or amend any Tax election or, to violatethe extent it would result in an increase in the post-Closing Taxes of Buyer, Newport, the Companies and the Subsidiaries or their Affiliates, settle or compromise any Tax liability or execute any waiver of restrictions on assessment or collection of any Tax; (j) Not: (i) approve or effect any reclassification or recapitalization of any Company or any Subsidiary or their respective authorized or outstanding shares of capital stock; (ii) merge or consolidate any Company or any Subsidiary with or sell any of their respective assets to a third party (other than sales of inventory in the ordinary course of business and consistent with past practices); (iii) approve or commence any proceedings for the liquidation of any Company or any Subsidiary; or (iv) enter into any agreement to do any of the foregoing; (k) Not: (i) amend in any manner the respective Certificates of Incorporation or bylaws, or fail similar organizational document, of any Company or any Subsidiary; (ii) authorize or issue any shares of capital stock of any class or series of any Company or any Subsidiary; (iii) create or issue any warrants, obligations, subscriptions, options, convertible securities or other commitments under which any additional shares of the capital stock of any class or other equity securities of any Company or any Subsidiary may be directly or indirectly authorized, issued or transferred; or (iv) agree to use do any of the above; (l) Not create or voluntarily incur (whether as principal, surety or otherwise) any indebtedness for borrowed money from any Person other than Parent, any of its subsidiaries, any Company or any Subsidiary, or any other liabilities or expenses, other than those incurred in the ordinary course of business consistent with past practices; (m) Not change or alter any policy or policies regarding the payment of any accounts payable or the collection of any accounts receivable; (n) Not: (i) discount any products sold by any Company or any Subsidiary except in the ordinary course of business, or (ii) take any action to accelerate the shipment of any products sold by any Company or any Subsidiary except in the ordinary course of business or at the request of the customer; and (o) Not take any action that would require disclosure under Section 4.8 (a) through (o) of this Agreement. (p) Use commercially reasonable efforts to cure any violation of, any applicable Laws; or (j) authorize, commit or agree obtain all consents to take any the change of control of the foregoing actionsCompanies and the Subsidiaries, in a form reasonably satisfactory to Newport, with respect to the Material Contracts under which such consent is required identified in Section 4.6 of the SP Disclosure Schedule.

PRE-CLOSING COVENANTS. During the period from the date hereof to the Closing Date (except as otherwise provided for or contemplated by this Agreement or in connection with the Formation Transactions), the SPE Management Company shall use commercially reasonable efforts to (and to shall cause each of the SPE its Management Company Subsidiaries to) conduct its businesses and operate and maintain the Properties in the ordinary course of business consistent with past practice practice, pay its debt obligations as they become due and payable, and use commercially reasonable efforts to preserve intact its current business organizations and preserve its relationships with customers, tenants, suppliers, advertisers and others having business dealings with it, in each case consistent with past practice. In addition, and without limiting the generality of the foregoing, during the period from the date hereof to the Closing Date and except in connection with the Formation Transactions, the SPE Management Company shall not (and shall not permit any of the SPE its Management Company Subsidiaries to) without the prior written consent of the REITOperating Partnership, which consent may be withheld by the Operating Partnership in its sole discretion: (a) (i) other than distributions to the members of the Management Company in connection with such members’ payment of any Taxes related to their ownership of the membership interest of the Management Company or as otherwise contemplated by this Agreement, declare, set aside or pay any dividends or distributions in respect of any of the SPE LLC Management Company Interests, except in the ordinary course of business consistent with past practice and in accordance with the SPE LLC Agreementapplicable governing document of the Management Company, (ii) issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any SPE LLC Management Company Interests or make any other changes to the equity capital structure of the SPE or any SPE SubsidiaryManagement Company, or (iii) purchase, redeem or otherwise acquire any SPE LLC Management Company Interests or member interests of any of the SPE Subsidiaries or any other securities thereof; (b) issue, deliver, sell, transfer, dispose, mortgage, pledge, assign or otherwise encumber, or cause the issuance, delivery, sale, transfer, disposition, mortgage, pledge, assignment or otherwise encumbrance of, any limited liability company, partnership interests or other equity interests in the SPE or any of the SPE Subsidiaries Management Company or any other assets of the SPE or SPE SubsidiariesManagement Company; (c) amend, modify or terminate any lease, contract or other instruments relating to the Property, except in the ordinary course of business consistent with past practice; (d) amend its certificate of formation or the SPE LLC Agreementand limited liability company agreement; (ed) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (fe) materially alter the manner of keeping such SPE or SPE Subsidiarythe Management Company’s books, accounts or records or the accounting practices therein reflected; (gf) file an entity classification election pursuant to Treasury Regulation Section 301.7701-3(c) on Internal Revenue Service Form 8832 (Entity Classification Election) to treat the SPE or any of its Subsidiaries Management Company as an association taxable as a corporation for United States federal income tax purposes; make or change any other Tax elections; settle or compromise any claim, notice, audit report or assessment in respect of Taxes; change any annual Tax accounting period; adopt or change any method of Tax accounting; file any amended Tax returnReturn; enter into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any Tax; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (h) terminate or amend any existing insurance policies affecting the Property that results in a material reduction in insurance coverage for the Property; (ig) knowingly cause or permit the SPE Management Company to violate, or fail to use commercially reasonable efforts to cure any violation of, any applicable Laws; (h) take any action or fail to take any action the result of which would have a Management Company Material Adverse Effect; or (ji) authorize, commit or agree to take any of the foregoing actions.