Common use of Affirmative Conduct Prior to Effective Time of the Merger Clause in Contracts

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company shall: (a) use its commercially reasonable efforts consistent with this Agreement to maintain and preserve intact its present business organization and to maintain and preserve its relationships and goodwill with customers, employees and others having business relationships with Company; (b) use its commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IP; (c) use its commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) perform its material contractual obligations and not become in material default on any such obligations; (e) duly observe and conform in all material respects to all lawful requirements applicable to its business; (f) maintain its assets and properties in good condition and repair, normal wear and tear excepted; (g) file all Tax Returns required to be filed with any tax authority in accordance with all applicable laws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; and (h) promptly notify Parent regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax liabilities or attributes of Company, or any actual or threatened collection enforcement activity by any Tax authority with respect to tax liabilities of Company.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company shall:and Company Sub shall do the following (and to the extent a failure by a Subsidiary of Company (other than Company Sub) to do any of the following would adversely affect Company or Company Sub or the transactions contemplated by this Agreement, Company and C▇▇▇▇ shall cause such Subsidiary to do the following): (a) use its their commercially reasonable efforts consistent with this Agreement to maintain and preserve intact its their present business organization organizations (other than by virtue of the Restructuring and the Spin Off) and to maintain and preserve its their relationships and goodwill with customers, employees and others having business relationships with Companythe Business; (b) use its their commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and Company Sub and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IP; (c) use its their commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) perform its their material contractual obligations and not become in material default on any such obligations; (e) pay all accounts payable and trade payables consistent with past practice and, in any event, as the same are due and payable, and maintain inventory consistent with past practice; (f) duly observe and conform in all material respects to all lawful requirements applicable to its business; (fg) maintain its their assets and properties in good condition and repair, normal wear and tear excepted; (gh) file all Tax Returns and all extensions, where applicable, that are required to be filed with any tax authority in accordance with all applicable laws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; and (hi) promptly notify Parent regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax liabilities or attributes of CompanyCompany or Company Sub, or any actual or threatened collection enforcement activity by any Tax authority with respect to tax liabilities of CompanyCompany or Company Sub. Except as expressly provided in this Section 6.2 (by reference to Subsidiaries of Company or to the Spun-Off Entities), none of the covenants and agreements contained in this Section 6.2 are applicable to the Spun-Off Entities.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company shall:shall (and shall cause the Company Subsidiaries to): (a) use its commercially reasonable efforts consistent with this Agreement to maintain and preserve intact its present business organization and to maintain and preserve its relationships and goodwill with customersaccount holders, borrowers, employees and others having business relationships with CompanyCompany or the Company Subsidiaries; (b) use its commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IPSubsidiaries; (c) use its commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) perform its material contractual obligations and not become in material default on any such obligations; (e) duly observe and conform in all material respects to all lawful requirements applicable to its business; (f) maintain its assets and properties in good condition and repair, normal wear and tear excepted; (g) file all Tax Returns required to be filed with any tax authority in accordance with all applicable laws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; and; (h) promptly notify Parent regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax liabilities or attributes of Company, or any actual or threatened collection enforcement activity by any Tax authority with respect to tax liabilities of Company; (i) make available to Parent monthly unaudited balance sheets and income statements of Company within 25 days after the close of each calendar month; (j) use its commercially reasonable efforts to obtain any third party consent with respect to any contract, agreement, lease, license, arrangement, permit or release that is material to the business of Company and the Company Subsidiaries on a consolidated basis or that is contemplated in this Agreement as required in connection with the Merger; provided, however, that no such third party consent need be obtained if a material amount of monetary consideration is required; and (k) maintain an allowance for loan and lease losses consistent with practices and methodology as in effect on the date of the execution of this Agreement provided that the dollar amount of such allowance shall be, in any event, maintained at a level which is at least equal to the amount thereof at December 31, 2003.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company shall:and Company Sub shall do the following (and to the extent a failure by a Subsidiary of Company (other than Company Sub) to do any of the following would adversely affect Company or Company Sub or the transactions contemplated by this Agreement, Company and ▇▇▇▇▇ shall cause such Subsidiary to do the following): (a) use its their commercially reasonable efforts consistent with this Agreement to maintain and preserve intact its their present business organization organizations (other than by virtue of the Restructuring and the Spin Off) and to maintain and preserve its their relationships and goodwill with customers, employees and others having business relationships with Companythe Business; (b) use its their commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and Company Sub and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IP; (c) use its their commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) perform its their material contractual obligations and not become in material default on any such obligations; (e) pay all accounts payable and trade payables consistent with past practice and, in any event, as the same are due and payable, and maintain inventory consistent with past practice; (f) duly observe and conform in all material respects to all lawful requirements applicable to its business; (fg) maintain its their assets and properties in good condition and repair, normal wear and tear excepted; (gh) file all Tax Returns and all extensions, where applicable, that are required to be filed with any tax authority in accordance with all applicable laws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; and (hi) promptly notify Parent regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax liabilities or attributes of CompanyCompany or Company Sub, or any actual or threatened collection enforcement activity by any Tax authority with respect to tax liabilities of CompanyCompany or Company Sub. Except as expressly provided in this Section 6.2 (by reference to Subsidiaries of Company or to the Spun-Off Entities), none of the covenants and agreements contained in this Section 6.2 are applicable to the Spun-Off Entities.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company shall:MDB shall (and shall cause MDNB to): (a) use its commercially reasonable efforts consistent with this Agreement to maintain and preserve intact its present business organization and to maintain and preserve its relationships and goodwill with customersaccount holders, borrowers, employees and others having business relationships with CompanyMDB or MDNB; (b) use its commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company MDB and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IPMDNB; (c) use its commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) perform its material contractual obligations and not become in material default on any such obligations; (e) duly observe and conform in all material respects to all lawful requirements applicable to its business; (f) maintain its assets and properties in good condition and repair, normal wear and tear excepted; (g) file all Tax Returns required to be filed with promptly upon learning of such information, advise GBB in writing of any tax authority event or any other transaction within its knowledge whereby any Person or Related Group of Persons acquires, directly or indirectly, record or beneficial ownership or control (as defined in accordance with all applicable laws, timely pay all Taxes due and payable as shown in Rule 13d-3 promulgated by the respective Tax Returns that are so filed and ensure that SEC under the Tax Returns will, as Exchange Act) of 5% or more of the time of filing, be based on tax positions that have substantial support under all applicable laws; andoutstanding MDB Stock prior to the record date fixed for the MDB Shareholders' Meeting or any adjourned meeting thereof to approve this Agreement and the transactions contemplated herein; (h) promptly notify Parent GBB regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s 's report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax tax liabilities or attributes of CompanyMDB, or any actual or threatened collection enforcement activity by any Tax tax authority with respect to tax liabilities of CompanyMDB; (i) make available to GBB monthly unaudited balance sheets and income statements of MDB within 25 days after the close of each calendar month; (j) not later than the 30th day of each calendar month and as of the Closing Date, amend or supplement the MDB Lists prepared and delivered pursuant to Article 4 to ensure that the information set forth in the MDB Lists accurately reflects the then-current status of MDB and MDNB. (k) use its commercially reasonable efforts to obtain any third party consent with respect to any contract, agreement, lease, license, arrangement, permit or release that is material to the business of MDB or MDNB or that is contemplated in this Agreement as required in connection with the Merger; (l) maintain an allowance for loan and lease losses consistent with practices and methodology as in effect on the date of the execution of this Agreement and cause ▇▇▇▇▇ ▇▇▇▇▇▇▇ to complete as of a date within 45 days of the anticipated Closing Date a review of the MDNB's assets in a manner consistent with his prior reviews; and (m) use its commercially reasonable efforts to furnish to Manatt, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP promptly upon its written request written representations and certificates as deemed reasonably necessary or appropriate for purposes of enabling Manatt, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP to render the tax opinion referred to in Section 9.6 hereof.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company shall:shall (and shall cause the Company Subsidiaries to): (a) use its commercially reasonable efforts consistent with this Agreement to maintain and preserve intact its present business organization and to maintain and preserve its relationships and goodwill with customersaccount holders, borrowers, key employees and others having business relationships with CompanyCompany or the Company Subsidiaries; (b) use its commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IPSubsidiaries; (c) use its commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) use its commercially reasonable efforts to perform its material contractual obligations and not become in material default on any such obligations; (e) use its commercially reasonable efforts to duly observe and conform in all material respects to all lawful requirements applicable to its business; (f) maintain its assets and properties in good condition and repair, normal wear and tear excepted; (g) file all Tax Returns required to be filed with any tax authority in accordance with all applicable lawsLaws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; andLaws; (h) promptly notify Parent regarding receipt from any tax authority of any written notification of the commencement of an auditaudit which could involve material financial consequences for the Company, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar written notification of potential adjustments to the Tax liabilities or attributes of Company which could involve material financial consequences for the Company, or any actual or threatened collection enforcement activity of which Company is aware by any Tax authority with respect to tax liabilities of Company; (i) make available to Parent monthly unaudited balance sheets and income statements of Company and Bank, as soon as available, but in no event later than within 15 days after the end of each calendar month; (j) use its commercially reasonable efforts to obtain any third party consent with respect to any contract, agreement, lease, license, arrangement, permit or release that is material to the business of Company and the Company Subsidiaries on a consolidated basis or that is contemplated in this Agreement as required in connection with the Merger or the Subsequent Mergers; (k) maintain an allowance for loan losses consistent with practices and methodology as in effect on the date of the execution of this Agreement provided that the dollar amount of such allowance shall be, in any event (but subject to applicable GAAP and regulatory accounting requirements and Law), maintained at a level which is at least equal to the amount thereof at December 31, 2004; and (l) except as otherwise required by applicable Law, manage Company’s and the Company Subsidiaries’ respective assets and liabilities in all material respects in accordance with Company’s asset and liability management policy as in effect on the date hereof as previously disclosed to Parent, unless otherwise agreed by the parties.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company shallshall cause Company and Company Subsidiaries to: (a) use its their commercially reasonable efforts consistent with this Agreement to maintain and preserve intact its their present business organization and to maintain and preserve its their relationships and goodwill with customers, employees and others having business relationships with CompanyCompany and Company Subsidiaries; (b) use its their commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IPCompany; (c) use its their commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns they own or leases lease and on its their business operations; (d) perform its material their contractual obligations and not become in material default on any such obligations; (e) duly observe and conform in all material respects to all lawful requirements applicable to its businessLaws; (f) maintain its their assets and properties in good condition and repair, normal wear and tear excepted; (g) file all Tax Returns required to be filed with any tax authority in accordance with all applicable laws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable lawsLaws; and (h) promptly notify Parent regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s report, any notice of proposed assessment, or any other similar notification of potential adjustments to the Tax liabilities or attributes of Company, or any actual or threatened collection enforcement activity by any Tax authority with respect to tax liabilities of Company.

Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Company shall:shall (and shall cause the Company Subsidiaries to): (a) use its commercially reasonable efforts consistent with this Agreement to maintain and preserve intact its present business organization and to maintain and preserve its relationships and goodwill with customersaccount holders, borrowers, key employees and others having business relationships with CompanyCompany or the Company Subsidiaries; (b) use its commercially reasonable efforts to keep in full force and effect all of the existing material permits and licenses of Company and to timely pay all filing, examination, issuance, post registration and maintenance fees, annuities and the like associated with or required with respect to any of the Company Registered IPSubsidiaries; (c) use its commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) use its commercially reasonable efforts to perform its material contractual obligations and not become in material default on any such obligations; (e) use its commercially reasonable efforts to duly observe and conform in all material respects to all lawful requirements applicable to its business; (f) maintain its assets and properties in good condition and repair, normal wear and tear excepted; (g) file all Tax Returns required to be filed with any tax authority in accordance with all applicable lawsLaws, timely pay all Taxes due and payable as shown in the respective Tax Returns that are so filed and ensure that the Tax Returns will, as of the time of filing, be based on tax positions that have substantial support under all applicable laws; andLaws; (h) promptly notify Parent regarding receipt from any tax authority of any written notification of the commencement of an auditaudit which could involve material financial consequences for the Company, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent’s 's report, any notice of proposed assessment, or any other similar written notification of potential adjustments to the Tax liabilities or attributes of Company which could involve material financial consequences for the Company, or any actual or threatened collection enforcement activity of which Company is aware by any Tax authority with respect to tax liabilities of Company; (i) make available to Parent monthly unaudited balance sheets and income statements of Company and Bank, as soon as available, but in no event later than within 15 days after the end of each calendar month; (j) use its commercially reasonable efforts to obtain any third party consent with respect to any contract, agreement, lease, license, arrangement, permit or release that is material to the business of Company and the Company Subsidiaries on a consolidated basis or that is contemplated in this Agreement as required in connection with the Merger or the Subsequent Mergers; (k) maintain an allowance for loan losses consistent with practices and methodology as in effect on the date of the execution of this Agreement provided that the dollar amount of such allowance shall be, in any event (but subject to applicable GAAP and regulatory accounting requirements and Law), maintained at a level which is at least equal to the amount thereof at December 31, 2004; and (l) except as otherwise required by applicable Law, manage Company's and the Company Subsidiaries' respective assets and liabilities in all material respects in accordance with Company's asset and liability management policy as in effect on the date hereof as previously disclosed to Parent, unless otherwise agreed by the parties.