Common use of Interim Operating Covenants Clause in Contracts

Interim Operating Covenants. The Business shall be conducted in, and the Sellers shall not take any action that materially deviates from, the ordinary course of business consistent with past practice, and the Sellers shall (a) operate the Facilities or cause the Facilities to be operated in a manner substantially consistent with applicable requirements of all Governmental Authorities and the Facilities’ and the Sellers’ respective past practices, including maintaining the Licenses in full force and effect; (b) subject to Section 4.19, maintain the Assets or cause the Assets to be maintained in substantially their existing condition, reasonable wear and tear excepted; (c) comply in all material respects with all statutes, laws, ordinances, rules, regulations, requirements, judgments, orders and decrees of any Governmental Authority (collectively, “Applicable Law”) with respect to the Assets and the operation thereof, including all required regulatory standards of any Governmental Authorities with regulatory jurisdiction over the Facilities and compliance in all material respects with all Government Programs; (d) timely pay all rents and other payments due on or before the Closing under, and otherwise maintain and comply with, all Contracts, all Tenant Leases, all Equipment Leases, all Residency Agreements and all Employee Benefit Plans; (e) except in the ordinary course of business and consistent with past practice (or as otherwise required by a Governmental Authority), not agree to or make any changes or modifications in any Residency Agreements or incur any further obligations or surrender any rights thereunder; (f) not enter into any agreements or leases which would have had to be disclosed in any section of the Disclosure Letter had such agreements or leases been entered into prior to the Effective Date; (g) not enter into or agree to or make any changes or modifications in any Contracts, Tenant Leases, Equipment Leases or Employee Benefit Plans or incur any further obligations or surrender any rights thereunder; (h) keep in full force and effect insurance policies with the same coverage limits and otherwise on substantially the same terms as existing policies through the Closing Date; (i) maintain in good standing all Licenses necessary to operate the Facilities; and (j) use commercially reasonable, good faith efforts to maintain all goodwill and preserve relationships with all Residents, employees, vendors and Governmental Authorities. For purposes of this Section 4.1 and Section 2.20, a “material deviation” shall include any actions that would be inconsistent with past practice that could reasonably be expected to result, directly or indirectly, in a reduction in net operating income of One Hundred Twenty-Five Thousand Dollars ($125,000.00) or more on an annualized basis, as presented in the Financial Statements.

Interim Operating Covenants. The Business shall be conducted inFrom the Signing Date until the Closing, except (i) as consented to by Buyer (in accordance with the procedures set forth in Section 3.5), (ii) to the extent required or prohibited by applicable Law or by any regulatory requirement, directive or order of any Department and (iii) as set forth on Section 3.4 of the Disclosure Letter, Seller shall, and shall cause the Sellers shall not take any action that materially deviates fromALICO Entities to, (A) comply with the covenants set forth in Articles 5 and 6 of the Credit Agreement (in the case of the ALICO Entities, to the extent already applicable pursuant to the terms thereof) and (B) except as expressly contemplated by this Agreement, in connection with the Restructuring and for regulatory restrictions and events arising out of the financial events concerning Seller as announced by Seller on September 16, 2008, conduct its business in the ordinary course consistent with past practice and use commercially reasonable efforts to preserve its present business organization, maintain in effect all of its Permits, keep available the services of its directors, officers and key employees, maintain satisfactory relationships with its customers, agents, bancassurance partners, reinsurers, lenders, suppliers and others having material business relationships with it, and manage its working capital in the ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, from the Signing Date until the Closing, except: (i) as expressly contemplated by this Agreement or any of the other Transaction Documents, (ii) to the extent required or prohibited by applicable Law or by any regulatory requirement, directive or order of any Department, (iii) as set forth on Section 3.4 of the Disclosure Letter, (iv) in connection with the Restructuring or (v) as a result of any agreement between Buyer and Seller, Seller shall not, except as consented to by Buyer (in accordance with the Sellers shall procedures set forth in Section 3.5), permit any ALICO Entity to take any of the following actions: (a) operate the Facilities any amendment of its articles of incorporation, bylaws or cause the Facilities to be operated other similar organizational documents (whether by merger, consolidation or otherwise) in a manner substantially consistent with applicable requirements of all Governmental Authorities and the Facilities’ and the Sellers’ respective past practices, including maintaining the Licenses in full force and effect; any materially adverse respect; (b) subject any splitting, combination or reclassification of any Equity Interest or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Equity Interest, or redemption, repurchase or other acquisition or offer to Section 4.19redeem, maintain repurchase, or otherwise acquire any Equity Interest, except for dividends and distributions by any of ALICO’s subsidiaries on a pro rata basis to the Assets or cause the Assets to equity owners thereof which shall be maintained in substantially their existing condition, reasonable wear and tear excepted; permitted; (c) comply in all material respects with all statutes(i) any issuance, lawsdelivery or sale, ordinancesor authorization of the issuance, rulesdelivery or sale of, regulations, requirements, judgments, orders and decrees any Equity Interests or (ii) amendment of any Governmental Authority (collectively, “Applicable Law”) with respect to the Assets and the operation thereof, including all required regulatory standards term of any Governmental Authorities with regulatory jurisdiction over the Facilities and compliance Equity Interests (in all material respects with all Government Programs; each case, whether by merger, consolidation or otherwise); (d) timely pay all rents and any acquisition (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, of any assets, securities, properties, interests or businesses, other payments due on or before the Closing under, and otherwise maintain and comply with, all Contracts, all Tenant Leases, all Equipment Leases, all Residency Agreements and all Employee Benefit Plans; than (ei) except in the ordinary course of business and of such ALICO Entities in a manner that is consistent with past practice practice, including (or as otherwise required by a Governmental Authority), not agree to or make any changes or modifications in any Residency Agreements or incur any further obligations or surrender any rights thereunder; (f1) not enter into any agreements or leases which would have had to be disclosed in any section the managing of the Disclosure Letter had such agreements or leases been entered into prior to the Effective Date; (g) not enter into or agree to or make any changes or modifications in any Contracts, Tenant Leases, Equipment Leases or Employee Benefit Plans or incur any further obligations or surrender any rights thereunder; (h) keep in full force and effect insurance policies with the same coverage limits and otherwise on substantially the same terms as existing policies through the Closing Date; (i) maintain in good standing all Licenses necessary to operate the Facilities; and (j) use commercially reasonable, good faith efforts to maintain all goodwill and preserve relationships with all Residents, employees, vendors and Governmental Authorities. For purposes of this Section 4.1 and Section 2.20, a “material deviation” shall include any actions that would be inconsistent with past practice that could reasonably be expected to result, directly or indirectly, in a reduction in net operating income of One Hundred Twenty-Five Thousand Dollars ($125,000.00) or more on an annualized basis, as presented investment assets in the Financial Statements.ordinary course of business by ALICO or any of the Insurance Subsidiaries,

Interim Operating Covenants. The Business shall be conducted in, and the Sellers shall not take any action that materially deviates from, the ordinary course of business consistent with past practice, and the Sellers shall (a) operate From the Facilities Effective Date until the earlier of: (1) the date this Agreement is terminated in accordance with Article XI and (2) the Closing Date (such period, the “Pre-Closing Period”), unless SPAC shall otherwise give prior consent (which consent shall not be unreasonably withheld, conditioned or cause delayed) in writing and except (x) as specifically contemplated or permitted by this Agreement or the Facilities Ancillary Agreements, or (y) other than in respect of the restrictions set forth in subclauses (i), (iii), (iv), (v), (x) or (xiv), to the extent that any action is taken or omitted to be operated taken in a manner substantially consistent response to or related to the actual or anticipated effect on any of the Target’s businesses of COVID-19 or any COVID-19 Measures, in each case with applicable requirements of all Governmental Authorities respect to this clause (z) in connection with or in response to COVID-19, the Target’s conduct and the Facilities’ and the Sellers’ respective past practices, including maintaining the Licenses in full force and effect; (b) subject to Section 4.19, maintain the Assets or cause the Assets to be maintained in substantially operate their existing condition, reasonable wear and tear excepted; (c) comply business in all material respects in the Ordinary Course of Business and use commercially reasonable efforts to preserve their existing relationships with all statutesmaterial customers, lawssuppliers and distributors, ordinances, rules, regulations, requirements, judgments, orders and decrees of any Governmental Authority (collectively, “Applicable Law”) with respect to the Assets and the operation thereofTarget shall not: (i) amend or otherwise modify any of its Governing Documents in any manner that would be adverse to SPAC, including all required regulatory standards of any Governmental Authorities with regulatory jurisdiction over the Facilities and compliance in all material respects with all Government Programs; (d) timely pay all rents and other payments due on or before the Closing under, and otherwise maintain and comply with, all Contracts, all Tenant Leases, all Equipment Leases, all Residency Agreements and all Employee Benefit Plans; (e) except in the ordinary course of business and consistent with past practice (or as otherwise required by a Governmental Authority), not agree to or Law; (ii) make any changes to its accounting policies, methods or modifications practices, other than as permitted under IFRS or applicable Law; (iii) sell, issue, redeem, assign, transfer, pledge (other than in connection with existing credit facilities), convey or otherwise dispose of (x) any Equity Securities of the Target, (y) any options, warrants, rights of conversion or other rights or agreements, arrangements or commitments obligating the Target to issue, deliver or sell any Equity Securities of Target; (iv) declare, make or pay any dividend, other distribution or return of capital (other than wholly in cash) to any equityholder as of the date hereof of the Target; (v) adjust, split, combine or reclassify any of its Equity Securities (except for any conversion of shares into deferred shares in accordance with the provisions of its Governing Documents); (vi) (x) incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness (other than (A) additional Indebtedness under existing credit facilities or lines of credit, (B) capital leases entered into in the Ordinary Course of Business, and (C) other Indebtedness not to exceed $250,000 in the aggregate), (y) make any advances or capital contributions to, or investments in, any Person, other than the Target or in the Ordinary Course of Business, or (z) amend or modify in any Residency Agreements material respect any Indebtedness; (vii) commit to, authorize or incur any further obligations or surrender any rights thereunder; (f) not enter into any agreements agreement in respect of, any capital expenditure (or leases which would have had series of commitments or capital expenditures), other than capital expenditures in an amount not to be disclosed exceed $1,000,000; (viii) enter into any material amendment or termination (other than an expiration in accordance with the terms thereof) of, or waive compliance with, any section material term of the Disclosure Letter had such agreements any Material Contract or leases been enter into any Contract that if entered into prior to the Effective DateDate would be a Material Contract, in each case other than in the Ordinary Course of Business and solely to the extent such amendment, termination or waiver would not materially and adversely impact the Target; (ix) other than inventory and other assets acquired in the Ordinary Course of Business, acquire the business, properties or assets, including Equity Securities of another Person, except, in each case, for acquisitions whose consideration in an aggregate amount (for all such acquisitions) is not greater than $750,000 and the consideration for which is payable only in cash, so long as, based upon the advice of the Target’s accountants, such acquisition, individually or in the aggregate, would not require any additional disclosure pursuant to the rules and regulations adopted by PCAOB (whether through merger, consolidation, share exchange, business combination or otherwise); (x) propose, adopt or effect any plan of complete or partial liquidation, dissolution, recapitalization or reorganization, or voluntarily subject to any material Lien, any of the material rights or material assets owned by, or leased or licensed to, the Target; (xi) compromise, commence or settle any pending or threatened Proceeding (w) involving payments (exclusive of attorney’s fees) by the Target not covered by insurance in excess of $75,000 in any single instance or in excess of $250,000 in the aggregate, (x) granting injunctive or other equitable remedy against the Target, (y) which imposes any material restrictions on the operations of businesses of the Target, taken as a whole or (z) by the equityholders of the Target or any other Person which relates to the transactions contemplated by this Agreement; (xii) except as required under applicable Law, the terms of any Target Employee Benefit Plan existing as of the date hereof with SPAC’s prior agreement (A) increase in any manner the compensation, bonus, severance or termination pay of any of the current or former directors, officers, employees or individual consultants of the Target, (B) become a party to, establish, amend, commence participation in, or terminate any share option plan or other share-based compensation plan, or any Target Employee Benefit Plan with or for the benefit of any current or former directors, officers, employees or individual consultants of the Target, (C) accelerate the vesting of or lapsing of restrictions with respect to any share-based compensation or other long-term incentive compensation under any Target Employee Benefit Plan, (D) grant any new awards under any Target Employee Benefit Plan, (E) amend or modify any outstanding award under any Target Employee Benefit Plan, (F) enter into, amend or terminate any collective bargaining agreement or other agreement with a labor union, works council or similar organization respecting employees of the Target, (G) forgive any loans, or issue any loans to any directors, officers, contractors or employees without prior agreement of SPAC, or (H) hire or engage any new employee or consultant or terminate the employment or engagement, other than for cause, of any employee or consultant if such new employee or consultant will receive, or does receive, annual base compensation (or annual base wages or fees) in excess of $200,000; (xiii) (A) sell, lease, assign, transfer, convey, license, sublicense, covenant not to assert, permit to lapse, abandon, allow to lapse, or otherwise dispose of, create, grant or issue any Liens (other than Permitted Liens), debentures or other securities in or on, any material rights or assets owned by, or leased or licensed to, the Target, other than (w) inventory or products in the Ordinary Course of Business, or (x) assets with an aggregate fair market value less than $500,000; or (gB) not subject any Owned Intellectual Property to Copyleft Terms; (xiv) disclose any Trade Secrets and any other material confidential information of the Target to any Person other than the Parent; (xv) fail to take any action required to maintain any material insurance policies of the Target in force (other than (A) substitution of an insurance policy by an insurance policy with a substantially similar coverage or (B) with respect to any policy that covers any asset or matter that has been disposed or is no longer subsisting or application), or knowingly take or omit to take any action that could reasonably result in any such insurance policy being void or voidable (other than (1) substitution of an insurance policy by an insurance policy with a substantially similar coverage, (2) with respect to any policy that covers any asset or matter that has been disposed or is no longer subsisting or application, or (3) actions in the Ordinary Course of Business; (xvi) except to the extent required by applicable Law, (A) make, change or revoke any material election relating to Taxes (subject to changes in applicable Law), (B) enter into any agreement, settlement or agree compromise with any Taxing Authority relating to a material amount of Taxes, (C) consent to any extension or make waiver of the statutory period of limitations applicable to any changes material Tax matter, (D) file any amended material Tax Return, (E) fail to timely file (taking into account valid extensions) any material Tax Return required to be filed, (F) fail to pay any material amount of Tax as it becomes due, (G) enter into any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement), or modifications in (H) surrender any Contractsright to claim any refund of a material amount of Taxes; (xvii) except as included as a Parent Transaction Expense, Tenant Leases, Equipment Leases or Employee Benefit Plans or incur any further obligations Liability, in connection with this Agreement or surrender the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of the Parent, the Target or SPAC to pay any rights thereunderinvestment banker fee, finder’s fee, brokerage or agent’s commissions or other similar payments or reimburse expenses of any of the foregoing; or (hxviii) keep agree or commit to do any of the foregoing. (b) From the Effective Date until the earlier of: (1) the date this Agreement is terminated in full force accordance with Article XI and effect insurance policies with the same coverage limits and otherwise on substantially the same terms as existing policies through (2) the Closing Date; , unless the Target shall otherwise give prior consent (i) maintain in good standing all Licenses necessary to operate the Facilities; and (j) use commercially reasonablewhich consent shall not be unreasonably withheld, good faith efforts to maintain all goodwill and preserve relationships with all Residents, employees, vendors and Governmental Authorities. For purposes of this Section 4.1 and Section 2.20, a “material deviation” shall include any actions that would be inconsistent with past practice that could reasonably be expected to result, directly or indirectly, in a reduction in net operating income of One Hundred Twenty-Five Thousand Dollars ($125,000.00) or more on an annualized basis, as presented in the Financial Statements.conditioned or

Interim Operating Covenants. The Business shall From the date hereof until the earlier of the Closing Date or termination of this Agreement in accordance with Article XI, except (i) as required by applicable Law or any Governmental Entity, (ii) as otherwise provided in this Agreement or an Ancillary Agreement, (iii) for repayments, redemptions, refinancings or repurchases of loans or other obligations under the Funded Indebtedness, (iv) as set forth on Section 6.5 of the Disclosure Schedules or (v) consented to in writing by Buyer, which consent may not unreasonably be conducted inwithheld, conditioned or delayed, Seller shall, and shall cause the Sellers Company Entities to (a) conduct the Business in the Ordinary Course of Business in all material respects; and (b) use commercially reasonable efforts to maintain the Business and to preserve the rights, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having business relationships with the Company Entities. In addition to and without limiting the foregoing, from the date hereof until the earlier of the Closing and termination of this Agreement in accordance with Article XI, except (i) as required by applicable Law or any Governmental Entity, (ii) as otherwise provided in this Agreement or an Ancillary Agreement, (iii) as set forth on Section 6.5 of the Disclosure Schedules or (iv) consented to in writing by Buyer, which consent may not unreasonably be withheld, conditioned or delayed, Seller shall not, and shall cause the Company Entities not to, take any action (or omit to take any action) that materially deviates from, the ordinary course of business consistent with past practice, and the Sellers shall (a) operate the Facilities or cause the Facilities would be required to be operated in a manner substantially consistent with applicable requirements of all Governmental Authorities and the Facilities’ and the Sellers’ respective past practices, including maintaining the Licenses in full force and effect; (b) subject to set forth on Section 4.19, maintain the Assets or cause the Assets to be maintained in substantially their existing condition, reasonable wear and tear excepted; (c) comply in all material respects with all statutes, laws, ordinances, rules, regulations, requirements, judgments, orders and decrees of any Governmental Authority (collectively, “Applicable Law”) with respect to the Assets and the operation thereof, including all required regulatory standards of any Governmental Authorities with regulatory jurisdiction over the Facilities and compliance in all material respects with all Government Programs; (d) timely pay all rents and other payments due on or before the Closing under, and otherwise maintain and comply with, all Contracts, all Tenant Leases, all Equipment Leases, all Residency Agreements and all Employee Benefit Plans; (e) except in the ordinary course of business and consistent with past practice (or as otherwise required by a Governmental Authority), not agree to or make any changes or modifications in any Residency Agreements or incur any further obligations or surrender any rights thereunder; (f) not enter into any agreements or leases which would have had to be disclosed in any section 3.8 of the Disclosure Letter Schedules if such action had such agreements or leases been entered into taken prior to the Effective Date; (g) not enter into or agree to or make any changes or modifications in any Contracts, Tenant Leases, Equipment Leases or Employee Benefit Plans or incur any further obligations or surrender any rights thereunder; (h) keep in full force and effect insurance policies with the same coverage limits and otherwise on substantially the same terms as existing policies through the Closing Date; (i) maintain in good standing all Licenses necessary to operate the Facilities; and (j) use commercially reasonable, good faith efforts to maintain all goodwill and preserve relationships with all Residents, employees, vendors and Governmental Authorities. For purposes of this Section 4.1 and Section 2.20, a “material deviation” shall include any actions that would be inconsistent with past practice that could reasonably be expected to result, directly or indirectly, in a reduction in net operating income of One Hundred Twenty-Five Thousand Dollars ($125,000.00) or more on an annualized basis, as presented in the Financial Statementsdate hereof.

Interim Operating Covenants. The Business shall be conducted in(a) From the date of this Agreement until the earlier of (x) the Closing and (y) the valid termination of this Agreement pursuant to Article VIII (the “Pre-Closing Period”), except as set forth on Schedule 7.1(a), Seller and the Sellers Company shall cause the Company to: (i) operate its businesses only in the usual and ordinary course of business and preserve the goodwill and organization of its businesses and the relationships with its customers, suppliers, employees and other business relations, (ii) maintain its assets in good operating condition and repair in accordance with past practices (normal wear and tear excepted), (iii) maintain insurance reasonably comparable to that in effect on the date of the Latest Balance Sheet, (iv) maintain inventory and supplies at customary and adequate operating levels consistent with past practice and replace, in accordance with past practice, any inoperable, worn out, damaged or obsolete assets with modern assets of at least comparable quality, (v) maintain current assets and current liabilities at a level consistent with past practice; (vi) maintain its books, accounts and records in accordance with past custom and practice as used in the preparation of the Latest Balance Sheet and the Financial Statements described in Section 3.5 (including, for the avoidance of doubt, maintaining any accounting principles, policies, procedures, methodologies and practices), (vii) make capital expenditures in a manner consistent with past practice; and (viii) maintain in full force and effect the existence of all Company Proprietary Rights owned by the Company. (b) Without limiting the generality of Section 7.1(a) above, prior to the Closing, except as set forth on Schedule 7.1(b), Seller and the Company shall cause the Company to not take or omit to take any action that materially deviates from, would have required disclosure pursuant to Section 3.7 if such action had been taken prior to the ordinary course date of business consistent with past practice, and the Sellers shall (a) operate the Facilities this Agreement or cause the Facilities to be operated would otherwise result in a manner substantially consistent with applicable requirements of all Governmental Authorities and the Facilities’ and the Sellers’ respective past practices, including maintaining the Licenses in full force and effect; (b) subject to Section 4.19, maintain the Assets or cause the Assets to be maintained in substantially their existing condition, reasonable wear and tear excepted; (c) comply in all material respects with all statutes, laws, ordinances, rules, regulations, requirements, judgments, orders and decrees breach of any Governmental Authority (collectivelyof the representations, “Applicable Law”) warranties or covenants made by or with respect to the Assets Company in this Agreement. (c) During the Pre-Closing Period, Seller and the operation thereofCompany shall grant, including all required regulatory standards and cause their respective officers, managers, directors, employees, attorneys, accountants, representatives and other agents to grant, to Buyer and its authorized representatives, accountants, attorneys and potential lenders, as well as their respective officers, employees, Affiliates and other agents, reasonable access, during normal business hours and upon reasonable notice, to the personnel, properties, customers, suppliers, lessors, books and records of any Governmental Authorities with regulatory jurisdiction over the Facilities Company. In addition, during the Pre-Closing Period, Seller and compliance in all material respects with all Government Programs; the Company shall report to Buyer, as and when requested, concerning the status of the operations, finances and affairs of Seller and the Company. (d) timely pay all rents Seller and the Company shall not (and Seller shall cause its and the Company’s respective Affiliates, equityholders, officers, directors, managers, employees, agents, consultants, financial advisors, accountants, legal counsel and other payments due on representatives not to), directly or before indirectly, (i) submit, solicit, initiate, encourage or discuss any proposal or offer from any Person (other than Buyer and its Affiliates in connection with the Closing undertransactions contemplated by this Agreement) or enter into any Contract or accept any offer relating to or consummate any (A) reorganization, and otherwise maintain and comply withliquidation, all Contractsdissolution or recapitalization of the Company, all Tenant Leases(B) merger or consolidation involving the Company, all Equipment Leases(C) purchase or sale of any assets or Equity Securities (or any rights to acquire, all Residency Agreements and all Employee Benefit Plans; (eor securities convertible into or exchangeable for, any such Equity Securities) except of the Company, other than the sale of inventory to customers in the ordinary course of business, or (D) similar transaction or business and consistent with past practice combination involving the Company or its businesses or assets (or as otherwise required by a Governmental Authority), not agree to or make any changes or modifications in any Residency Agreements or incur any further obligations or surrender any rights thereunder; (f) not enter into any agreements or leases which would have had to be disclosed in any section each of the Disclosure Letter had such agreements or leases been entered into prior to the Effective Date; foregoing transactions described in clauses (gA) not enter into or agree to or make any changes or modifications in any Contracts, Tenant Leases, Equipment Leases or Employee Benefit Plans or incur any further obligations or surrender any rights thereunder; through (h) keep in full force and effect insurance policies with the same coverage limits and otherwise on substantially the same terms as existing policies through the Closing Date; (i) maintain in good standing all Licenses necessary to operate the Facilities; and (j) use commercially reasonable, good faith efforts to maintain all goodwill and preserve relationships with all Residents, employees, vendors and Governmental Authorities. For purposes of this Section 4.1 and Section 2.20D), a “material deviation” shall include any actions that would be inconsistent with past practice that could reasonably be expected to result, directly or indirectly, in a reduction in net operating income of One Hundred Twenty-Five Thousand Dollars ($125,000.00Company Transaction”) or more on an annualized basis(ii) furnish any information with respect to, as presented assist or participate in or facilitate in any other manner any effort or attempt by any Person (other than Buyer and its Affiliates) to do or seek to do any of the Financial Statementsforegoing. Seller and the Company agrees to notify ▇▇▇▇▇ immediately if any Person makes any proposal, offer, inquiry or contact with respect to a Company Transaction.

Interim Operating Covenants. The Business shall be conducted inFrom the Signing Date until the Closing, except (i) as consented to by Buyer (in accordance with the procedures set forth in Section 3.5), (ii) to the extent required or prohibited by applicable Law or by any regulatory requirement, directive or order of any Department and (iii) as set forth on Section 3.4 of the Disclosure Letter, Seller shall, and shall cause the Sellers shall not take any action that materially deviates fromALICO Entities to, (A) comply with the covenants set forth in Articles 5 and 6 of the Credit Agreement (in the case of the ALICO Entities, to the extent already applicable pursuant to the terms thereof) and (B) except as expressly contemplated by this Agreement, in connection with the Restructuring and for regulatory restrictions and events arising out of the financial events concerning Seller as announced by Seller on September 16, 2008, conduct its business in the ordinary course consistent with past practice and use commercially reasonable efforts to preserve its present business organization, maintain in effect all of its Permits, keep available the services of its directors, officers and key employees, maintain satisfactory relationships with its customers, agents, bancassurance partners, reinsurers, lenders, suppliers and others having material business relationships with it, and manage its working capital in the ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, from the Signing Date until the Closing, except: (i) as expressly contemplated by this Agreement or any of the other Transaction Documents, (ii) to the extent required or prohibited by applicable Law or by any regulatory requirement, directive or order of any Department, (iii) as set forth on Section 3.4 of the Disclosure Letter, (iv) in connection with the Restructuring or (v) as a result of any agreement between Buyer and Seller, Seller shall not, except as consented to by Buyer (in accordance with the Sellers shall procedures set forth in Section 3.5), permit any ALICO Entity to take any of the following actions: (a) operate any amendment of its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise) in any materially adverse respect; (b) any splitting, combination or reclassification of any Equity Interest or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Equity Interest, or redemption, repurchase or other acquisition or offer to redeem, repurchase, or otherwise acquire any Equity Interest, except for dividends and distributions by any of ALICO’s subsidiaries on a pro rata basis to the Facilities equity owners thereof which shall be permitted; (c) (i) any issuance, delivery or cause sale, or authorization of the Facilities to be operated issuance, delivery or sale of, any Equity Interests or (ii) amendment of any term of any Equity Interests (in each case, whether by merger, consolidation or otherwise); (d) any acquisition (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, of any assets, securities, properties, interests or businesses, other than (i) in the ordinary course of business of such ALICO Entities in a manner substantially that is consistent with applicable requirements of all Governmental Authorities and the Facilities’ and the Sellers’ respective past practicespractice, including maintaining (1) the Licenses managing of the investment assets in full force the ordinary course of business by ALICO or any of the Insurance Subsidiaries, (2) ALICO or any of the Insurance Subsidiaries effecting treasury and effect; (b) subject to Section 4.19, maintain the Assets or cause the Assets to be maintained in substantially their existing condition, reasonable wear and tear excepted; (c) comply in all material respects with all statutes, laws, ordinances, rules, regulations, requirements, judgments, orders and decrees of any Governmental Authority (collectively, “Applicable Law”) with respect to the Assets and the operation thereof, including all required regulatory standards of any Governmental Authorities with regulatory jurisdiction over the Facilities and compliance in all material respects with all Government Programs; (d) timely pay all rents and other payments due on or before the Closing under, and otherwise maintain and comply with, all Contracts, all Tenant Leases, all Equipment Leases, all Residency Agreements and all Employee Benefit Plans; (e) except cash management functions conducted in the ordinary course of business and (3) ordinary course reinsurance and co-insurance arrangements, (ii) any transaction among ALICO and any of its subsidiaries or among any subsidiaries of ALICO, (iii) investments set forth in the Capital Expenditure Budget, (iv) Securities Lending Management and (v) acquisitions with a purchase price (including any related assumed Indebtedness) that does not exceed $25 million individually or $50 million in the aggregate; (e) any sale, lease or other transfer, or creation or incurrence of any lien (other than Permitted Liens) (“Dispositions”) on, any assets, securities, properties, interests or businesses, other than (i) in the ordinary course of business in a manner that is consistent with past practice practice, including (1) the managing of the investment assets in the ordinary course of business by ALICO or as otherwise required by any of the Insurance Subsidiaries, (2) ALICO or any of the Insurance Subsidiaries effecting treasury and cash management functions conducted in the ordinary course of business and (3) ordinary course reinsurance and co-insurance arrangements, (ii) any transaction among ALICO and any of its subsidiaries or among any subsidiaries of ALICO, (iii) Securities Lending Management and (iv) Dispositions of assets, securities, properties, interests or businesses with a Governmental Authority), sale price (including any related assumed Indebtedness) that does not agree to exceed $25 million individually or make any changes or modifications $50 million in any Residency Agreements or incur any further obligations or surrender any rights thereunder; the aggregate; (f) not enter into the creation, incurrence or assumption of any agreements Indebtedness for borrowed money or leases which would have had to be disclosed in any section guarantees thereof having an aggregate principal amount (together with all other Indebtedness of the Disclosure Letter had ALICO Entities) outstanding at any time greater than $500 million; provided, however, that (A) any refinancing (including any extension, renewal or exchange) of existing Indebtedness shall be permitted, so long as the principal amount of the existing Indebtedness being refinanced is equal to or more than the amount of any such agreements new Indebtedness being incurred without regard to any unpaid accrued interest and premium thereon plus other reasonable fees incurred in connection with such refinancing, (B) loans or leases been entered into prior borrowing by ALICO or any of its subsidiaries under currently available lines of credit shall be permitted, (C) intercompany loans, guarantees or advances made among ALICO or any of its subsidiaries shall be permitted, (D) Securities Lending Management shall be permitted, and (E) other Indebtedness incurred or assumed in connection with the transactions permitted pursuant to the Effective Date; any of Sections 3.4(d)(i)(1), (d)(i)(2) and (d)(v) or Sections 3.4(e)(i)(1) or (e)(i)(2) shall be permitted; (g) not enter (i) the grant or increase of any material severance or termination pay to (or amendment of any existing arrangement with) any current or former director, officer or employee other than in the ordinary course of business, as currently conducted, (ii) any material increase in benefits payable under any existing severance or termination pay policies or employment agreements other than in the ordinary course of business, as currently conducted, (iii) the entering into of any material employment, deferred compensation or agree other similar agreement (or amendment of any such existing agreement) with any current or former director, officer or employee other than in the ordinary course of business, as currently conducted, (iv) the establishment, adoption or amendment of any material collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer or employee other than in the ordinary course of business, as currently conducted, or (v) any material increase in compensation, bonus or other benefits payable to any current or make any changes former director, officer or modifications employee other than in any Contractsthe ordinary course of business, Tenant Leases, Equipment Leases or Employee Benefit Plans or incur any further obligations or surrender any rights thereunder; as currently conducted; (h) keep any material change in full force and effect insurance policies with the same coverage limits and otherwise on substantially the same terms methods of accounting, except as existing policies through the Closing Date; required by concurrent changes in GAAP or SAP or applicable Law as agreed to by Seller’s independent public accountants; (i) maintain any settlement or proposal to settle (i) any material litigation, investigation, arbitration, proceeding or other claim against or adversely affecting any ALICO Entity, other than with respect to (A) claims under insurance policies within policy limits or (B) claims for a cash payment by an ALICO Entity not in good standing all Licenses necessary excess of $10 million, or (ii) any litigation, arbitration, proceeding or dispute involving, against or adversely affecting any ALICO Entity that relates to operate any of the Facilities; and transactions contemplated by any of the Transaction Documents; (j) use commercially reasonableto the extent any of the following would materially and adversely affect, good faith efforts and relates principally to, the Company and any Material Subsidiary (as defined in the LLC Agreement but as of the Signing Date), the making or changing of any Tax election, the changing of any annual Tax accounting period, or adoption of or change to maintain all goodwill and preserve relationships with all Residentsany method of Tax accounting, employeesthe filing of any amended Tax return, vendors and Governmental Authorities. For purposes the entering into of this Section 4.1 and Section 2.20any closing agreement, the settlement of any Tax claim or assessment, or the surrender of any right to claim a “material deviation” shall include any actions that would be inconsistent with past practice that could reasonably be expected to resultTax refund, directly offset or indirectly, in a other reduction in net operating income Tax liability; (k) the entering into of One Hundred Twenty-Five Thousand Dollars any Tax Sharing Agreement; or ($125,000.00l) any agreement, resolution or more on an annualized basis, as presented in commitment to do any of the Financial Statementsforegoing.

Interim Operating Covenants. The Business shall be conducted inFrom the Signing Date until the Closing, except (i) as consented to by Buyer (in accordance with the procedures set forth in Section 3.5), (ii) to the extent required or prohibited by applicable Law or by any regulatory requirement, directive or order of any Department and (iii) as set forth on Section 3.4 of the Disclosure Letter, Parent shall, and shall cause the Sellers shall not take any action that materially deviates fromAIA Entities to, (A) comply with the covenants set forth in Articles 5 and 6 of the Credit Agreement (in the case of the AIA Entities, to the extent already applicable pursuant to the terms thereof) and (B) except as expressly contemplated by this Agreement, in connection with the Restructuring and for regulatory restrictions and events arising out of the financial events concerning Parent as announced by Parent on September 16, 2008, conduct its business in the ordinary course consistent with past practice and use commercially reasonable efforts to preserve its present business organization, maintain in effect all of its Permits, keep available the services of its directors, officers and key employees, maintain satisfactory relationships with its customers, agents, bancassurance partners, reinsurers, lenders, suppliers and others having material business relationships with it, and manage its working capital in the ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, from the Signing Date until the Closing, except: (i) as expressly contemplated by this Agreement or any of the other Transaction Documents, (ii) to the extent required or prohibited by applicable Law or by any regulatory requirement, directive or order of any Department, (iii) as set forth on Section 3.4 of the Disclosure Letter, (iv) in connection with the Restructuring or (v) as a result of any agreement between Buyer and Parent, Parent shall not, except as consented to by Buyer (in accordance with the Sellers shall procedures set forth in Section 3.5), permit any AIA Entity to take any of the following actions: (a) operate the Facilities any amendment of its articles of incorporation, bylaws or cause the Facilities to be operated other similar organizational documents (whether by merger, consolidation or otherwise) in a manner substantially consistent with applicable requirements of all Governmental Authorities and the Facilities’ and the Sellers’ respective past practices, including maintaining the Licenses in full force and effect; any materially adverse respect; (b) subject any splitting, combination or reclassification of any Equity Interest or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Equity Interest, or redemption, repurchase or other acquisition or offer to Section 4.19redeem, maintain repurchase, or otherwise acquire any Equity Interest, except for dividends and distributions by any of AIA’s subsidiaries or by any of PhilAm’s subsidiaries on a pro rata basis to the Assets or cause the Assets to equity owners thereof which shall be maintained in substantially their existing condition, reasonable wear and tear excepted; permitted; (c) comply in all material respects with all statutes(i) any issuance, lawsdelivery or sale, ordinancesor authorization of the issuance, rulesdelivery or sale of, regulations, requirements, judgments, orders and decrees any Equity Interests or (ii) amendment of any Governmental Authority (collectively, “Applicable Law”) with respect to the Assets and the operation thereof, including all required regulatory standards term of any Governmental Authorities with regulatory jurisdiction over the Facilities and compliance Equity Interests (in all material respects with all Government Programs; each case, whether by merger, consolidation or otherwise); (d) timely pay all rents and any acquisition (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, of any assets, securities, properties, interests or businesses, other payments due on or before the Closing under, and otherwise maintain and comply with, all Contracts, all Tenant Leases, all Equipment Leases, all Residency Agreements and all Employee Benefit Plans; than (ei) except in the ordinary course of business and of such AIA Entities in a manner that is consistent with past practice practice, including (1) the managing of the investment assets in the ordinary course of business by AIA, PhilAm or as otherwise required any of the Regulated Subsidiaries and (2) AIA, PhilAm or any of the Regulated Subsidiaries effecting treasury and cash management functions conducted in the ordinary course of business, and (3) ordinary course reinsurance and co-insurance arrangements, (ii) any transaction among members of the AIA PhilAm Group, (iii) investments set forth in the Capital Expenditure Budget, (iv) Securities Lending Management, and (v) acquisitions with a purchase price (including any related assumed Indebtedness) that does not exceed $25 million individually or $50 million in the aggregate; (e) any sale, lease or other transfer, or creation or incurrence of any lien (other than Permitted Liens) (“Dispositions”) on, any assets, securities, properties, interests or businesses, other than (i) in the ordinary course of business in a manner that is consistent with past practice, including (1) the managing of the investment assets in the ordinary course of business by AIA, PhilAm or any of the Regulated Subsidiaries and (2) AIA, PhilAm or any of the Regulated Subsidiaries effecting treasury and cash management functions conducted in the ordinary course of business, and (3) ordinary course reinsurance and co-insurance arrangements, (ii) any transaction among members of the AIA PhilAm Group, (iii) Securities Lending Management, and (iv) Dispositions of assets, securities, properties, interests or businesses with a Governmental Authority), sale price (including any related assumed Indebtedness) that does not agree to exceed $25 million individually or make any changes or modifications $50 million in any Residency Agreements or incur any further obligations or surrender any rights thereunder; the aggregate, (f) not enter into the creation, incurrence or assumption of any agreements Indebtedness for borrowed money or leases which would have had to be disclosed in any section guarantees thereof having an aggregate principal amount (together with all other Indebtedness of the Disclosure Letter had such agreements AIA Entities) outstanding at any time greater than $500 million; provided, however, that (A) any refinancing (including any extension, renewal or leases been entered into prior to exchange) of existing Indebtedness shall be permitted, so long as the Effective Date; (g) not enter into or agree principal amount of the existing Indebtedness being refinanced is equal to or make more than the amount of any changes or modifications such new Indebtedness being incurred without regard to any unpaid accrued interest and premium thereon plus other reasonable fees incurred in any Contracts, Tenant Leases, Equipment Leases or Employee Benefit Plans or incur any further obligations or surrender any rights thereunder; (h) keep in full force and effect insurance policies connection with the same coverage limits and otherwise on substantially the same terms as existing policies through the Closing Date; (i) maintain in good standing all Licenses necessary to operate the Facilities; and (j) use commercially reasonable, good faith efforts to maintain all goodwill and preserve relationships with all Residents, employees, vendors and Governmental Authorities. For purposes of this Section 4.1 and Section 2.20, a “material deviation” shall include any actions that would be inconsistent with past practice that could reasonably be expected to result, directly or indirectly, in a reduction in net operating income of One Hundred Twenty-Five Thousand Dollars ($125,000.00) or more on an annualized basis, as presented in the Financial Statements.such refinancing,

Interim Operating Covenants. The Business Without the prior written consent of Buyer (which shall not be conducted inunreasonably withheld, conditioned or delayed), and except as set forth in Section 6.1 of the Sellers shall not take Disclosure Schedule, as required by applicable Law, as otherwise contemplated by this Agreement or any action that materially deviates fromAncillary Agreement or as required pursuant to any Material Contract, from the date of this Agreement until the Closing, or the earlier termination of this Agreement in accordance with Article VIII, the Company shall (and shall cause each of its Subsidiaries to) conduct its business only in the Ordinary Course of Business and use commercially reasonable efforts to (i) preserve its current relationships with customers, employees, suppliers and others having material business dealings with it, (ii) maintain its books and records in the usual, regular and ordinary course of business manner, on a basis consistent with past practice, (iii) preserve the goodwill and ongoing operations of its business and (iv) preserve the Sellers confidentiality of any material Trade Secrets included in the Company-Owned Intellectual Property (except those contained in any materials filed with the United States Patent and Trademark Office or its foreign equivalents in respect to a Patent application or similar Intellectual Property Right). Without limiting the generality of the foregoing, from the date of this Agreement until the Closing, or the earlier termination of this Agreement in accordance with Article VIII, without the prior written consent of Buyer (which shall not be unreasonably withheld, conditioned or delayed), the Company shall not (and shall cause each of its Subsidiaries not to): (a) operate the Facilities issue, sell, grant, pledge or cause the Facilities otherwise dispose of, or grant or permit to be operated exist any Lien with respect to, any Equity Interests in a manner substantially consistent with applicable requirements of all Governmental Authorities and the Facilities’ and the Sellers’ respective past practicesany Group Company, including maintaining the Licenses or grant options, warrants or other rights to purchase or otherwise acquire any Equity Interests in full force and effect; any Group Company; (b) subject to Section 4.19effect any recapitalization, maintain split, repurchase, reclassification or like change in the Assets capitalization of any Group Company, or cause the Assets to be maintained declare or pay any dividends on or make any other distributions (whether in substantially cash, stock or other property) in respect of any of their existing condition, reasonable wear and tear excepted; Equity Interests. (c) comply in all material respects with all statutes, laws, ordinances, rules, regulations, requirements, judgments, orders and decrees amend the Organizational Documents of any Group Company; (d) make, change or revoke any material Tax election; settle or compromise any Tax Contest; amend any Tax Return; enter into or terminate any agreement with a Governmental Authority (collectively, “Applicable Law”) Body in respect of Taxes; consent to an extension or waiver of the statutory limitations period applicable to a claim or assessment in respect of Taxes; request any ruling with respect to Taxes; enter into a Tax allocation, sharing or indemnity agreement; or change or make any material change to any of its methods of Tax accounting, in each case if such action would reasonably be expected to have the Assets and effect of increasing the operation thereof, including all required regulatory standards amount of any Governmental Authorities with regulatory jurisdiction over Tax borne by the Facilities and compliance in all material respects with all Government Programs; (d) timely pay all rents and other payments due on Company or before the Closing under, and otherwise maintain and comply with, all Contracts, all Tenant Leases, all Equipment Leases, all Residency Agreements and all Employee Benefit Plans; Buyer; (e) other than as required by any existing Benefit Plan in effect as of the date of this Agreement or applicable Law: (i) increase the annual level of compensation or benefits payable to any of its officers, employees, independent contractors or consultants, other than increases in the Ordinary Course of Business to the annual salary or wage rate (excluding any Company Employees who participate in the Director Plus Bonus Plan or the Executive Bonus Plan) that do not exceed 5% individually or in the aggregate, (ii) grant any bonus, retention, severance, termination pay, or other incentive compensation payments to any director, officer, employee, consultant or independent contractor of any Group Company other than the payment of annual bonuses for completed periods based on actual performance in the Ordinary Course of Business, (iii) increase the coverage or benefits available under any Benefit Plan, or (iv) establish or adopt any new Benefit Plan or any plan, program, agreement or arrangement that would be a Benefit Plan if in effect on the date of this Agreement, or materially amend any award, benefits or entitlement under any such existing Benefit Plan; (f) other than as required by applicable Law: (i) hire, or offer to hire, any officer, employee, consultant or independent contractor of any Group Company, other than in the Ordinary Course of Business to fill vacancies of individual independent contractors on terms substantially comparable to those of the departed independent contractor, (ii) terminate, other than for cause, the employment or engagement with any employee with a title at or above the level of Director, any employee with a title below the level of Director other than in the Ordinary Course of Business, any consultant or independent contractor other than in the Ordinary Course of Business, or any group of employees that would trigger WARN Act or other group termination requirements, or (iii) recognize, enter into or materially amend any collective bargaining arrangement or other agreement with a labor union or a works council; (g) subject any of the material assets (whether tangible or intangible) of any Group Company to any lien, pledge, security interest or other encumbrance, other than Permitted Liens; (h) sell, assign, transfer, convey, license (other than non-exclusive licenses of Intellectual Property Rights solely as permitted under the exceptions set forth in subsections (i) through (ii) of Section 6.1(i)), lease or otherwise dispose of any material assets of any Group Company (except in the Ordinary Course of Business or for the purposes of disposing of obsolete or worthless assets); (i) fail to renew, abandon, cancel, surrender, rescind, allow to enter into the public domain, let lapse (other than lapse of Company-Owned Intellectual Property or Assigned Intellectual Property at the end of its final non-extendible statutory term) or fail to continue to prosecute or defend any material Company-Owned Intellectual Property or Assigned Intellectual Property or encumber, license (including through covenants not to assert), sell, transfer or otherwise dispose of any Company-Owned Intellectual Property or Assigned Intellectual Property (other than (i) non-exclusive licenses or grants of rights to Intellectual Property Rights to end users or (ii) non-exclusive licenses to access and use Intellectual Property Rights to provide or receive services under Software as a service agreements or related services agreements, in each case of clauses (i) and (ii), in the Ordinary Course of Business); (j) transfer or provide any copies of, or access to, any Software source code of any Company-Owned Intellectual Property or Company Products to any Person (including any current or former employee or contractor of any Group Company or any Affiliate, or any contractor or commercial partner of any Group Company or any Affiliate), other than providing access to such source code to current employees and contractors of a Group Company involved in the development of Company Products on a need-to-know basis in the ordinary course of business and consistent with past practice business, subject to written confidentiality obligations; (k) subject any Software the rights to which are included in the Company-Owned Intellectual Property or Assigned Intellectual Property to the terms of any Open Source Software license or to any Open Source Software requirements (other than any such requirements that such Software is subject to as of the date of this Agreement); (l) modify any public-facing privacy policy or notice applicable to the Business in a manner that would reasonably be expected to materially restrict the ability of the Buyer or its Affiliates (or as otherwise required the Group Companies) to process Personal Information currently processed by a Governmental Authorityany Group Company (beyond the restrictions currently contained in such privacy policy or notice), except to the extent required to comply with Privacy Laws or because of policy changes relating to the Seller Group that do not impact the Business as distinct from the rest of the Seller Group; (m) enter into or agree to or make any changes or modifications in any Residency Agreements or incur any further obligations or surrender any rights thereunder; (f) not enter into any agreements merger or leases which would have had to be disclosed in consolidation with any section Person, adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization, or acquire any equity interests of, or all or substantially all of the Disclosure Letter had such agreements assets of, any other Person, or leases been enter into any agreement or commitment with respect to a joint venture, strategic alliance or partnership; (n) incur any Indebtedness for borrowed money or guarantee any Indebtedness or other obligations of any other Person; (o) (i) enter into any Contract that would (if entered into prior to the Effective Date; date hereof) constitute a Material Contract, (gii) not enter into violate or terminate any Material Contract (other than expirations or non-renewals pursuant to its terms that require no action by any Group Company), or (iii) amend, otherwise modify, or waive any of the terms of any of its Material Contracts, in the case of this clause (iii) other than in the Ordinary Course of Business; (p) make any capital expenditures, capital additions or capital improvements in excess of $1,000,000 individually or in the aggregate; (q) materially change the amount of, or terminate (including allowing to lapse or failing to maintain), any insurance coverage; (r) (i) commence a Legal Proceeding other than (A) for the routine collection of bills or (B) to enforce this Agreement or (ii) settle or agree to settle any pending or make threatened Legal Proceeding or other dispute; provided, however, that the Company may settle any Legal Proceeding without Buyer’s consent if (A) such settlement amount does not exceed $100,000 individually or $500,000 in the aggregate, (B) such settlement does not impose any non-monetary obligation or restriction on any Group Company, Buyer or any of its Affiliates (including any admission of culpability or the grant of any license, waiver, release or covenant not to sue in respect of any Company-Owned Intellectual Property or Assigned Intellectual Property), and (C) such settlement includes a full release of claims; (s) change accounting methods or practices, except as required by changes in GAAP as concurred with its independent accountants and after notice to Buyer; (t) enter into any agreement for the purchase, sale or modifications lease of any real property; (u) take any action that would result in any Contracts, Tenant Leases, Equipment Leases Group Company having any new Subsidiary; or (v) enter into any agreement or Employee Benefit Plans or incur commitment to do any further obligations or surrender any rights thereunder; (h) keep in full force and effect insurance policies with of the same coverage limits and otherwise on substantially the same terms as existing policies through the Closing Date; (i) maintain in good standing all Licenses necessary to operate the Facilities; and (j) use commercially reasonable, good faith efforts to maintain all goodwill and preserve relationships with all Residents, employees, vendors and Governmental Authorities. For purposes of this Section 4.1 and Section 2.20, a “material deviation” shall include any actions that would be inconsistent with past practice that could reasonably be expected to result, directly or indirectly, in a reduction in net operating income of One Hundred Twenty-Five Thousand Dollars ($125,000.00) or more on an annualized basis, as presented in the Financial Statementsforegoing.

Interim Operating Covenants. The Business shall be conducted inDuring the period beginning on the Effective Date and ending upon (and including) the earlier of (x) the Closing Date and (y) the date of termination of this Agreement pursuant to and in accordance with Section 6.1 (the “Interim Period”), and except (i) as required by applicable Laws (or any Order issued by any Governmental Authority), (ii) as expressly permitted under this Agreement, including the Sellers shall not take any action that materially deviates fromPre-Closing Restructuring Plan in the Agreed Form, or (iii) with the ordinary course prior written consent of business consistent with past practicethe Purchaser, and which consent, solely in the Sellers shall case of clause (a) operate below, shall not be unreasonably withheld, conditioned or delayed: (a) the Facilities or Issuer and APLD shall, and shall cause their respective Affiliates (including any member of the Facilities APLD Group, to be operated the extent related to the Business) to, conduct the Business and use the HPC Assets in a manner substantially consistent the Ordinary Course of Business and use their respective reasonable best efforts to (A) preserve in all material respects the goodwill, reputation and present relationships with applicable requirements of all suppliers, customers, Governmental Authorities and others having significant business relationships with the Facilities’ and Business, the Sellers’ respective past practices, including maintaining Issuer or any of the Licenses in full force and effectSubsidiaries of the Issuer; (bB) subject to Section 4.19maintain their businesses, maintain assets (including, for the Assets or cause avoidance of doubt, the Assets to be maintained HPC Assets) and properties (including, for the avoidance of doubt, the ELN Campus) in substantially their existing condition, reasonable the same condition as they exist as of the date of this Agreement (ordinary wear and tear excepted); (cC) comply maintain and renew in the Ordinary Course of Business all material respects with all statutes, laws, ordinances, rules, regulations, requirements, judgments, orders applicable Insurance Policies (or obtain replacement or substitute insurance policies providing substantially similar coverage) and decrees of any Governmental Authority (collectively, “Applicable Law”) with respect to the Assets and the operation thereof, including all required regulatory standards of any Governmental Authorities with regulatory jurisdiction over the Facilities and compliance in all material respects with all Government ProgramsMaterial Permits; (dD) timely pay all rents and other payments due on or before keep available the Closing under, and otherwise maintain and comply with, all Contracts, all Tenant Leases, all Equipment Leases, all Residency Agreements and all Employee Benefit Plans; (e) except in the ordinary course services of business and consistent its applicable key employees consistently with past practice (or as otherwise required by a Governmental Authority), not agree to or make any changes or modifications in any Residency Agreements or incur any further obligations or surrender any rights thereunder; (f) not enter into any agreements or leases which would have had to be disclosed in any section of the Disclosure Letter had such agreements or leases been entered into prior to the Effective Date; (g) not enter into or agree to or make any changes or modifications in any Contracts, Tenant Leases, Equipment Leases or Employee Benefit Plans or incur any further obligations or surrender any rights thereunder; (h) keep in full force and effect insurance policies with the same coverage limits and otherwise on substantially the same terms as existing policies through the Closing Date; (i) maintain in good standing all Licenses necessary to operate the Facilitiespractice; and (jE) operate the Business and use commercially reasonablethe HPC Assets in compliance with applicable Laws; and (b) neither the Issuer nor APLD shall, good faith efforts and shall cause their Affiliates not to, take any action, or agree, resolve or commit to maintain all goodwill and preserve relationships with all Residents, employees, vendors and Governmental Authorities. For purposes of this Section 4.1 and Section 2.20, a “material deviation” shall include take any actions that would be inconsistent with past practice that could reasonably be expected to result, directly or indirectly, in a reduction in net operating income of One Hundred Twenty-Five Thousand Dollars ($125,000.00) or more action set forth on an annualized basis, as presented in the Financial StatementsSchedule 3 hereto.

Interim Operating Covenants. The Business shall be conducted inFrom the Signing Date until the Closing, except (i) as consented to by Buyer (in accordance with the procedures set forth in Section 3.5), (ii) to the extent required or prohibited by applicable Law or by any regulatory requirement, directive or order of any Department and (iii) as set forth on Section 3.4 of the Disclosure Letter, Parent shall, and shall cause the Sellers shall not take any action that materially deviates fromAIA Entities to, (A) comply with the covenants set forth in Articles 5 and 6 of the Credit Agreement (in the case of the AIA Entities, to the extent already applicable pursuant to the terms thereof) and (B) except as expressly contemplated by this Agreement, in connection with the Restructuring and for regulatory restrictions and events arising out of the financial events concerning Parent as announced by Parent on September 16, 2008, conduct its business in the ordinary course consistent with past practice and use commercially reasonable efforts to preserve its present business organization, maintain in effect all of its Permits, keep available the services of its directors, officers and key employees, maintain satisfactory relationships with its customers, agents, bancassurance partners, reinsurers, lenders, suppliers and others having material business relationships with it, and manage its working capital in the ordinary course of business consistent with past practice. Without limiting the generality of the foregoing, from the Signing Date until the Closing, except: (i) as expressly contemplated by this Agreement or any of the other Transaction Documents, (ii) to the extent required or prohibited by applicable Law or by any regulatory requirement, directive or order of any Department, (iii) as set forth on Section 3.4 of the Disclosure Letter, (iv) in connection with the Restructuring or (v) as a result of any agreement between Buyer and Parent, Parent shall not, except as consented to by Buyer (in accordance with the Sellers shall procedures set forth in Section 3.5), permit any AIA Entity to take any of the following actions: (a) operate the Facilities any amendment of its articles of incorporation, bylaws or cause the Facilities to be operated other similar organizational documents (whether by merger, consolidation or otherwise) in a manner substantially consistent with applicable requirements of all Governmental Authorities and the Facilities’ and the Sellers’ respective past practices, including maintaining the Licenses in full force and effect; any materially adverse respect; (b) subject any splitting, combination or reclassification of any Equity Interest or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any Equity Interest, or redemption, repurchase or other acquisition or offer to Section 4.19redeem, maintain repurchase, or otherwise acquire any Equity Interest, except for dividends and distributions by any of AIA’s subsidiaries or by any of PhilAm’s subsidiaries on a pro rata basis to the Assets or cause the Assets to equity owners thereof which shall be maintained in substantially their existing condition, reasonable wear and tear excepted; permitted; (c) comply in all material respects with all statutes(i) any issuance, lawsdelivery or sale, ordinancesor authorization of the issuance, rulesdelivery or sale of, regulations, requirements, judgments, orders and decrees any Equity Interests or (ii) amendment of any Governmental Authority (collectively, “Applicable Law”) with respect to the Assets and the operation thereof, including all required regulatory standards term of any Governmental Authorities with regulatory jurisdiction over the Facilities and compliance Equity Interests (in all material respects with all Government Programs; each case, whether by merger, consolidation or otherwise); (d) timely pay all rents and any acquisition (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, of any assets, securities, properties, interests or businesses, other payments due on or before the Closing under, and otherwise maintain and comply with, all Contracts, all Tenant Leases, all Equipment Leases, all Residency Agreements and all Employee Benefit Plans; than (ei) except in the ordinary course of business and of such AIA Entities in a manner that is consistent with past practice practice, including (1) the managing of the investment assets in the ordinary course of business by AIA, PhilAm or as otherwise required any of the Regulated Subsidiaries and (2) AIA, PhilAm or any of the Regulated Subsidiaries effecting treasury and cash management functions conducted in the ordinary course of business, and (3) ordinary course reinsurance and co-insurance arrangements, (ii) any transaction among members of the AIA PhilAm Group, (iii) investments set forth in the Capital Expenditure Budget, (iv) Securities Lending Management, and (v) acquisitions with a purchase price (including any related assumed Indebtedness) that does not exceed $25 million individually or $50 million in the aggregate; (e) any sale, lease or other transfer, or creation or incurrence of any lien (other than Permitted Liens) (“Dispositions”) on, any assets, securities, properties, interests or businesses, other than (i) in the ordinary course of business in a manner that is consistent with past practice, including (1) the managing of the investment assets in the ordinary course of business by AIA, PhilAm or any of the Regulated Subsidiaries and (2) AIA, PhilAm or any of the Regulated Subsidiaries effecting treasury and cash management functions conducted in the ordinary course of business, and (3) ordinary course reinsurance and co-insurance arrangements, (ii) any transaction among members of the AIA PhilAm Group, (iii) Securities Lending Management, and (iv) Dispositions of assets, securities, properties, interests or businesses with a Governmental Authority), sale price (including any related assumed Indebtedness) that does not agree to exceed $25 million individually or make any changes or modifications $50 million in any Residency Agreements or incur any further obligations or surrender any rights thereunder; the aggregate, (f) not enter the creation, incurrence or assumption of any Indebtedness for borrowed money or guarantees thereof having an aggregate principal amount (together with all other Indebtedness of the AIA Entities) outstanding at any time greater than $500 million; provided, however, that (A) any refinancing (including any extension, renewal or exchange) of existing Indebtedness shall be permitted, so long as the principal amount of the existing Indebtedness being refinanced is equal to or more than the amount of any such new Indebtedness being incurred without regard to any unpaid accrued interest and premium thereon plus other reasonable fees incurred in connection with such refinancing, (B) loans or borrowing by members of the AIA PhilAm Group under currently available lines of credit shall be permitted, (C) intercompany loans, guarantees or advances made among members of the AIA PhilAm Group shall be permitted, (D) Securities Lending Management shall be permitted, and (E) other Indebtedness incurred or assumed in connection with the transactions permitted pursuant to any of Sections 3.4(d)(i)(1), (d)(i)(2), (d)(iii) or (d)(v) or Sections 3.4(e)(i)(1) or (e)(i)(2) shall be permitted; (g) (i) the grant or increase of any material severance or termination pay to (or amendment of any existing arrangement with) any current or former director, officer or employee other than in the ordinary course of business, as currently conducted, (ii) any material increase in benefits payable under any existing severance or termination pay policies, or employment agreements other than in the ordinary course of business, as currently conducted, (iii) the entering into of any agreements material employment, deferred compensation or leases which would have had other similar agreement (or amendment of any such existing agreement) with any current or former director, officer or employee other than in the ordinary course of business, as currently conducted, (iv) the establishment, adoption or amendment of any material collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer or employee other than in the ordinary course of business, as currently conducted or (v) any material increase in compensation, bonus or other benefits payable to any current or former director, officer or employee other than in the ordinary course of business, as currently conducted; provided, however, that Parent shall be disclosed in any section permitted to transfer to one or more AIA Entities the employees described on Section 3.4(g) of the Disclosure Letter had such agreements or leases been entered into whose services primarily relate to the businesses of the AIA Entities, to the extent those transfers have not occurred prior to the Effective Signing Date; (g) not enter into or agree to or make any changes or modifications in any Contracts, Tenant Leases, Equipment Leases or Employee Benefit Plans or incur any further obligations or surrender any rights thereunder; ; (h) keep any material change in full force and effect insurance policies with the same coverage limits and otherwise on substantially the same terms methods of accounting, except as existing policies through the Closing Date; required by concurrent changes in GAAP, IFRS or SAP or applicable Law as agreed to by Parent’s independent public accountants; (i) maintain any settlement or proposal to settle (i) any material litigation, investigation, arbitration, proceeding or other claim against or adversely affecting any AIA Entity, other than with respect to (A) claims under insurance policies within policy limits or (B) claims for a cash payment by an AIA Entity not in good standing all Licenses necessary excess of $10 million, or (ii) any litigation, arbitration, proceeding or dispute involving, against or adversely affecting any AIA Entity that relates to operate any of the Facilities; and transactions contemplated by any of the Transaction Documents; (j) use commercially reasonableto the extent any of the following would materially and adversely affect the Company and any Material Subsidiary (as defined in the LLC Agreement but as of the Signing Date), good faith efforts the making or changing of any Tax election, the changing of any annual Tax accounting period, or adoption of or change to maintain all goodwill and preserve relationships with all Residentsany method of Tax accounting, employeesthe filing of any amended Tax return, vendors and Governmental Authorities. For purposes the entering into of this Section 4.1 and Section 2.20any closing agreement, the settlement of any Tax claim or assessment, or the surrender of any right to claim a “material deviation” shall include any actions that would be inconsistent with past practice that could reasonably be expected to resultTax refund, directly offset or indirectly, in a other reduction in net operating income Tax liability; (k) the entering into of One Hundred Twenty-Five Thousand Dollars any Tax Sharing Agreement; or ($125,000.00l) any agreement, resolution or more on an annualized basis, as presented in commitment to do any of the Financial Statementsforegoing.

Interim Operating Covenants. The Business shall be conducted inExcept as (x) consented to or approved by the Purchaser in writing, and (y) as set forth on Schedule 10.4(a) or (z) required or otherwise expressly permitted by this Agreement, from the date hereof until the Closing, the Sellers (i) shall not take any action that materially deviates fromwould be reasonably likely to cause the Sellers' representations and warranties herein to be untrue in any material respect, (ii) shall conduct the ordinary course Businesses only in the Ordinary Course of Business, (iii) shall use their reasonable best efforts to preserve intact the present business organization of the Businesses, keep available the services of the Businesses' present management and employees and preserve their relationships with clients, suppliers, customers, lenders and others having business dealings with them (including, to the extent consistent with the provisions of this Agreement, their respective Affiliates), (iv) shall use their reasonable best efforts to maintain the Purchased Assets in the Ordinary Course of Business consistent with past practice, and the Sellers shall (a) operate the Facilities or cause the Facilities to be operated in a manner substantially consistent with applicable requirements of all Governmental Authorities and the Facilities’ and the Sellers’ respective past practices, including maintaining the Licenses in full force and effect; (b) subject to Section 4.19, maintain the Assets or cause the Assets to be maintained in substantially their existing condition, reasonable wear and tear excepted; , and (cv) comply in all material respects with all statutes, laws, ordinances, rules, regulations, requirements, judgments, orders and decrees of any Governmental Authority shall not take or permit (collectively, “Applicable Law”) with respect to the Assets and extent within the operation thereof, including all required regulatory standards of Sellers' control) any Governmental Authorities with regulatory jurisdiction over the Facilities and compliance in all material respects with all Government Programs; (d) timely pay all rents and other payments due on or before the Closing under, and otherwise maintain and comply with, all Contracts, all Tenant Leases, all Equipment Leases, all Residency Agreements and all Employee Benefit Plans; (e) except in the ordinary course of business and consistent with past practice (or as otherwise required by a Governmental Authority), not agree to or make any changes or modifications in any Residency Agreements or incur any further obligations or surrender any rights thereunder; (f) not enter into any agreements or leases which would have had to be disclosed in any section of the Disclosure Letter had such agreements or leases been entered into prior to the Effective Date; (g) not enter into or agree to or make any changes or modifications in any Contracts, Tenant Leases, Equipment Leases or Employee Benefit Plans or incur any further obligations or surrender any rights thereunder; (h) keep in full force and effect insurance policies with the same coverage limits and otherwise on substantially the same terms as existing policies through the Closing Date; (i) maintain in good standing all Licenses necessary to operate the Facilities; and (j) use commercially reasonable, good faith efforts to maintain all goodwill and preserve relationships with all Residents, employees, vendors and Governmental Authorities. For purposes of this Section 4.1 and Section 2.20, a “material deviation” shall include any actions that would be inconsistent with past practice action that could reasonably be expected to resultresult in (A) a Material Adverse Change in respect of the Businesses or the Purchased Assets or, directly which could reasonably be expected to result in the commencement of any involuntary case under the Bankruptcy Code, or indirectlythe occurrence of any Bankruptcy Action, involving any Seller or any of their respective Subsidiaries, or (B) which could reasonably be expected to result in the failure of any of the conditions set forth in Article VIII to be satisfied. Without limiting the foregoing, except as contemplated by this Agreement, including Schedule 10.4(a), the Sellers shall not, and shall cause their respective Subsidiaries and Affiliates not to, without the prior written consent of the Purchaser: (i) permit or allow any of the assets that will be Purchased Assets to be subjected to any Encumbrance, except for (x) Permitted Encumbrances, (y) the Bank Debt and (z) Encumbrances that are part of the Assumed Liabilities as of the date of this Agreement; (ii) sell, transfer, license, lease or otherwise dispose of or agree to dispose of (including by the granting of an option, conditional sale agreement or otherwise), or acquire or agree to acquire, any assets that would be Purchased Assets except in the Ordinary Course of Business and then only to the extent such assets have a reduction value, individually or in net operating income the aggregate, not in excess of One Hundred Twenty-Five Thousand Dollars $50,000, or sell, transfer, license, lease or otherwise dispose of or agree to dispose of any Servicing Rights; ($125,000.00iii) amend or more on an annualized basismodify their charter, bylaws or partnership agreement, as presented the case may be, if such amendment or modification would have an adverse affect on the Businesses, the Purchased Assets or this Agreement and the transactions contemplated hereby; (iv) except as required by any Contract or applicable Law, grant any increase or implement any decrease in the Financial Statements.compensation of Employees of the Businesses (including any such increase pursuant to any bonus, pension, profit-sharing or other plan