TO HAVE ANY STAY OR
TEMPORARY RESTRAINING ORDER ENTERED BY ANY COURT OR OTHER GOVERNMENTAL ENTITY
WITH RESPECT TO THE MERGER OR THIS AGREEMENT VACATED OR REVERSED, AND (IV) THE
EXECUTION AND DELIVERY OF ANY ADDITIONAL INSTRUMENTS NECESSARY TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
SECTION 4.7
CONDUCT OF COMPANY'S BUSINESS.
FROM THE DATE OF THIS
AGREEMENT THROUGH THE CLOSING, THE COMPANY (A) SHALL MAINTAIN ITS EXISTENCE AND
CARRY ON ITS BUSINESS IN THE ORDINARY COURSE AND, TO THE EXTENT CONSISTENT
THEREWITH, (B) SHALL USE ALL REASONABLE EFFORTS TO KEEP AVAILABLE THE SERVICES
OF ITS CURRENT OFFICERS AND EMPLOYEES AND PRESERVE ITS BUSINESS RELATIONSHIPS TO
THE END THAT ITS GOODWILL AND ONGOING BUSINESS SHALL CONTINUE AT THE TIME OF THE
CLOSING WITHOUT MATERIAL CHANGE AND (C) SHALL PRESERVE THE COMPANY'S STATUS AS A
REIT WITHIN THE MEANING OF THE CODE AND SHALL NOT TAKE OR OMIT TO TAKE ANY
ACTION, OR PERMIT ANY STATUS TO EXIST, THAT WOULD LIKELY JEOPARDIZE, OR IS
INCONSISTENT WITH, THE COMPANY'S STATUS AS A REIT FOR ANY PERIOD.
NOTWITHSTANDING THE FOREGOING, THE COMPANY SHALL ENTER INTO HEDGING TRANSACTIONS
AT THE REQUEST OF PARENT, AT THE COMPANY'S SOLE COST AND EXPENSE, AS SET FORTH
ON SCHEDULE 4.7 OF THE COMPANY LETTER.
THE COMPANY SHALL PROMPTLY ANSWER ANY
REASONABLE INQUIRIES OF PARENT WITH RESPECT TO OPERATIONAL MATTERS AND PROMPTLY
ADVISE PARENT ORALLY AND IN WRITING OF ANY MATERIAL
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ADVERSE EFFECT OR ANY MATTER WHICH COULD REASONABLY BE EXPECTED TO RESULT IN THE
COMPANY BEING UNABLE TO DELIVER THE CERTIFICATE DESCRIBED IN SECTION 5.3(E).
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DURING THE PERIOD FROM THE
DATE OF THIS AGREEMENT UNTIL THE EARLIER OF THE TERMINATION OF THIS AGREEMENT OR
THE EFFECTIVE TIME, EXCEPT AS OTHERWISE CONTEMPLATED BY THIS AGREEMENT OR AS SET
FORTH ON SCHEDULE 4.7 OF THE COMPANY LETTER, THE COMPANY SHALL NOT, NOR SHALL IT
PERMIT ANY OF ITS SUBSIDIARIES TO, WITHOUT THE PRIOR WRITTEN CONSENT OF PARENT,
SUBJECT TO THE FIDUCIARY DUTIES OF CMSLP TO THE BENEFICIARIES OF THE TRUST
SECURITIZATIONS OF WHICH CMSLP ACTS AS SPECIAL SERVICER OR IN ANY OTHER
CAPACITY:
(I)
ADOPT ANY AMENDMENT TO ITS ARTICLES OR CERTIFICATE OF
INCORPORATION OR BY-LAWS OR OTHER COMPARABLE ORGANIZATIONAL DOCUMENTS;
(II)
ISSUE, DELIVER, SELL, PLEDGE, DISPOSE OF OR OTHERWISE ENCUMBER
ANY SHARES OF ITS CAPITAL STOCK, ANY OTHER VOTING SECURITIES OR EQUITY
EQUIVALENT OR ANY SECURITIES CONVERTIBLE INTO, OR ANY RIGHTS, WARRANTS OR
OPTIONS TO ACQUIRE, ANY SUCH SHARES, VOTING SECURITIES, EQUITY EQUIVALENT OR
CONVERTIBLE SECURITIES, OTHER THAN THE ISSUANCE OF SHARES OF THE COMPANY COMMON
STOCK UPON THE EXERCISE OF STOCK OPTIONS OR VESTING OF RESTRICTED STOCK
OUTSTANDING ON THE DATE HEREOF PURSUANT TO THE COMPANY STOCK OPTION AND DEFERRED
COMPENSATION PLANS IN ACCORDANCE WITH THEIR TERMS, THE CONVERSION OF ANY
CONVERTIBLE SECURITIES OUTSTANDING AS OF THE DATE HEREOF AND THE ISSUANCE OF
SHARES OF THE COMPANY COMMON STOCK UPON ANY EXERCISE OF THE WARRANT;
(III)
(X) DECLARE, SET ASIDE OR PAY ANY DIVIDENDS ON, OR MAKE ANY OTHER