Common use of CONDUCT OF SELLER'S BUSINESS PENDING TRANSFER Clause in Contracts

CONDUCT OF SELLER'S BUSINESS PENDING TRANSFER. Prior to the Closing Date or the earlier termination of this Agreement, except as (i) specifically contemplated by this Agreement, or (ii) consented to in writing by one Purchaser representative identified on Schedule 6.1 of the Disclosure Schedule Seller will, and will cause each of the Subsidiaries to: (a) Continue to operate, manage, lease and maintain the Properties in the usual, regular and ordinary course and in compliance with all applicable Laws and in substantially the same manner as heretofore and substantially consistent with the "expense" portions of the Budgets, but with respect to the Properties, subject to ordinary wear and tear; (b) Use reasonable efforts to keep available the services of their officers and key employees; (c) Confer on a regular basis with one or more representatives of Purchaser to report operational matters of materiality and any proposals to engage in material transactions, and promptly provide Purchaser with (i) all material notices received and financial statements and operating reports prepared in connection with any of the documents evidencing or securing any loans encumbering the Properties and (ii) all financial statements and operating reports routinely prepared by Seller relating to the Properties or the Purchased Assets; (d) Promptly notify Purchaser of any material emergency or other material change at the Properties; (e) Maintain its books and records in accordance with the accounting principles currently utilized by it, consistently applied, and not change in any material manner any of their methods, principles or practices of accounting currently in effect, except as may be required by applicable Law or GAAP; (f) Duly and timely file all reports, Tax Returns and other documents required to be filed with federal, state, local and other Governmental Entities, subject to extensions permitted by Law; (g) Not (i) acquire or sell or ground lease, or enter into any option or agreement to acquire or sell or ground lease, or exercise an option or contract to acquire, sell or ground lease any of the Properties or, other than the parcels described in Schedule 4.5(h) of the Disclosure Schedule, any part thereof or direct or indirect interest therein, other than leasing in accordance with Section 6.2, (ii) encumber or subject to any Lien any of the Properties or Purchased Assets, (iii) modify, amend, supplement, terminate or assign the Assumed Loan Documents, the documents evidencing the Assumed Liabilities, the REAs, and the Ground Leases, (iv) (Intentionally Omitted), (v) transfer, sell or assign any Material Contracts, or (vi) enter into or modify, amend, supplement, or assign any management, operating, listing, brokerage, supply and maintenance agreement that is not terminable by Seller or a Subsidiary without penalty upon the sale of the Purchased Assets or upon 30 days prior written notice or less; (h) Not permit the outstanding principal balance due under the Key Credit Agreement to exceed $47,000,000; (i) Not modify, amend, supplement, terminate or assign any material terms of any Material Contract in a manner adverse to the Purchaser without obtaining the prior written consent of Purchaser; (j) Keep in full force and effect with respect to the Properties policies of insurance providing coverage at least as extensive as the policies covering the Properties on the date hereof; (k) From and after the expiration of the Contract Due Diligence Period, provide Purchaser with (i) access to the computers, including the YARDI system, with respect to the Properties and the Purchased Assets and (ii) appropriate personnel to assist with same so that Purchaser can start to transition the management and ownership of the Properties; (l) Intentionally Omitted; (m) Use commercially reasonable efforts to obtain the consents required to consummate the Transfer and the other transactions contemplated by this Agreement, including those described in Schedule 4.2(b) of the Disclosure Schedule and the consents of the holders of the Assumed Indebtedness and the ground lessors under the Ground Leases; (n) Provide to Purchaser's title insurance company the form of the affidavits attached as Exhibit 6.1(n) of the Disclosure Schedule and other customary and commercially reasonable (as determined by Seller) affidavits (but not a non-imputation affidavit), documents and information necessary for such title insurance company to insure title to the Properties subject only to the Permitted Encumbrances for the benefit of Purchaser; (o) In the event Seller becomes aware that any of Seller's representations and warranties made hereunder are inaccurate, untrue or incorrect in any material respect, Seller shall promptly notify Purchaser with a reasonably detailed description of the inaccuracy; (p) Not settle any insurance claims or other litigation that would materially and adversely affect the Properties after the Closing without Purchaser's consent; (q) Cooperate with Purchaser to have any letters of credit in respect of any Tenant Deposits assigned to Purchaser or hold any letters of credit of and draw on them at Purchaser's request until a new letter of credit may be issued to Purchaser or its designee. This obligation of Seller will survive Closing; (r) Not apply any Tenant Deposits to delinquent Rentals or other amounts owed by a Tenant while a Tenant is in possession of the space under its Lease without Purchaser's consent; (s) Intentionally Omitted; (t) Comply in all material respects with the terms and conditions of the Assumed Indebtedness applicable to the Properties, Seller and its Subsidiaries; (u) Except with respect to the Redevelopment Properties, not enter into a contract or agreement that would be a Material Contract without Purchaser's consent unless the expenditures thereunder are included in the Budgets or are capital expenditures not in excess of 10% of the aggregate of the capital expenditures in the Budget or the Material Contract relates to tenant work to be performed under an existing Lease or a new Lease entered into pursuant to Section 6.2; (v) At or prior to Closing terminate all property management agreements and leasing agreements with respect to the Properties, including without limitation, the agreement with Divaris Real Estate, Inc., all at Seller's sole cost and expense; and

CONDUCT OF SELLER'S BUSINESS PENDING TRANSFER. Prior to the Closing Date or the earlier termination of this Agreement, except as (i) specifically contemplated by this Agreement, or (ii) consented to in writing by one Purchaser representative identified on Schedule 6.1 of the Disclosure Schedule Seller will, and will cause each of the Subsidiaries to: (a) Continue to operate, manage, lease and maintain the Properties in the usual, regular and ordinary course and in compliance with all applicable Laws and in substantially the same manner as heretofore and substantially consistent with the "expense" portions of the Budgets, but with respect to the Properties, subject to ordinary wear and tear; (b) Use reasonable efforts to keep available the services of their officers and key employees; (c) Confer on a regular basis with one or more representatives of Purchaser to report operational matters of materiality and any proposals to engage in material transactions, and promptly provide Purchaser with (i) all material notices received and financial statements and operating reports prepared in connection with any of the documents evidencing or securing any loans encumbering the Properties and (ii) all financial statements and operating reports routinely prepared by Seller relating to the Properties or the Purchased Assets; (d) Promptly notify Purchaser of any material emergency or other material change at the Properties; (e) Maintain its books and records in accordance with the accounting principles currently utilized by it, consistently applied, and not change in any material manner any of their methods, principles or practices of accounting currently in effect, except as may be required by applicable Law or GAAP; (f) Duly and timely file all reports, Tax Returns and other documents required to be filed with federal, state, local and other Governmental Entities, subject to extensions permitted by Law; (g) Not (i) acquire or sell or ground lease, or enter into any option or agreement to acquire or sell or ground lease, or exercise an option or contract to acquire, sell or ground lease any of the Properties or, other than the parcels described in Schedule 4.5(h) of the Disclosure Schedule), any part thereof or direct or indirect interest therein, other than leasing in accordance with Section 6.2, (ii) encumber or subject to any Lien any of the Properties or Purchased Assets, (iii) modify, amend, supplement, terminate or assign the Assumed Loan Documents, the documents evidencing the Assumed Liabilities, the REAs, and the Ground Leases, (iv) (Intentionally Omitted), (v) transfer, sell or assign any Material Contracts, or (vi) enter into or modify, amend, supplement, or assign any management, operating, listing, brokerage, supply and maintenance agreement that is not terminable by Seller or a Subsidiary without penalty upon the sale of the Purchased Assets or upon 30 days prior written notice or less; (h) Not permit the outstanding principal balance due under the Key Credit Agreement to exceed $47,000,000; (i) Not modify, amend, supplement, terminate or assign any material terms of any Material Contract in a manner adverse to the Purchaser without obtaining the prior written consent of Purchaser; (j) Keep in full force and effect with respect to the Properties policies of insurance providing coverage at least as extensive as the policies covering the Properties on the date hereof; (k) From and after the expiration of the Contract Due Diligence Period, provide Purchaser with (i) access to the computers, including the YARDI system, with respect to the Properties and the Purchased Assets and (ii) appropriate personnel to assist with same so that Purchaser can start to transition the management and ownership of the Properties; (l) Intentionally Omitted; (m) Use commercially reasonable efforts to obtain the consents required to consummate the Transfer and the other transactions contemplated by this Agreement, including those described in Schedule 4.2(b) of the Disclosure Schedule and the consents of the holders of the Assumed Indebtedness and the ground lessors under the Ground Leases; (n) Provide to Purchaser's title insurance company the form of the affidavits attached as Exhibit 6.1(n) of the Disclosure Schedule and other customary and commercially reasonable (as determined by Seller) affidavits (but not a non-imputation affidavit), documents and information necessary for such title insurance company to insure title to the Properties subject only to the Permitted Encumbrances for the benefit of Purchaser; (o) In the event Seller becomes aware that any of Seller's representations and warranties made hereunder are inaccurate, untrue or incorrect in any material respect, Seller shall promptly notify Purchaser with a reasonably detailed description of the inaccuracy; (p) Not settle any insurance claims or other litigation that would materially and adversely affect the Properties after the Closing without Purchaser's consent; (q) Cooperate with Purchaser to have any letters of credit in respect of any Tenant Deposits assigned to Purchaser or hold any letters of credit of and draw on them at Purchaser's request until a new letter of credit may be issued to Purchaser or its designee. This obligation of Seller will survive Closing; (r) Not apply any Tenant Deposits to delinquent Rentals or other amounts owed by a Tenant while a Tenant is in possession of the space under its Lease without Purchaser's consent; (s) Intentionally Omitted; (t) Comply in all material respects with the terms and conditions of the Assumed Indebtedness applicable to the Properties, Seller and its Subsidiaries; (u) Except with respect to the Redevelopment Properties, not enter into a contract or agreement that would be a Material Contract without Purchaser's consent unless the expenditures thereunder are included in the Budgets or are capital expenditures not in excess of 10% of the aggregate of the capital expenditures in the Budget or the Material Contract relates to tenant work to be performed under an existing Lease or a new Lease entered into pursuant to Section 6.2; (v) At or prior to Closing terminate all property management agreements and leasing agreements with respect to the Properties, including without limitation, the agreement with Divaris Real Estate, Inc., all at Seller's sole cost and expense; and

CONDUCT OF SELLER'S BUSINESS PENDING TRANSFER. Prior to the applicable Closing Date or the earlier termination of this Agreement, except as (i) specifically contemplated by this Agreement, or (ii) consented to in writing by one Purchaser representative identified on Schedule 6.1 of the Disclosure Schedule Seller will, and will cause each of the Subsidiaries Assigning Affiliates to: (a) Continue to operate, manage, lease (subject to Section 6.2) and maintain the Acquired Assets and the Master LLC Properties in the usual, regular and ordinary course and in compliance with all applicable Laws and in substantially the same manner as heretofore and substantially consistent with the "expense" portions of the Budgets, but with respect to the Properties, subject to ordinary wear and tearhistorical Operating Expenses; (b) Use reasonable efforts to preserve intact their business organization and goodwill and keep available the services of their officers and key employees; (c) Confer Subject to SECTION 6.1(g), confer on a regular basis with one or more representatives of Purchaser to report operational matters of materiality and any proposals to engage in material transactionsother matters concerning the Properties, and promptly provide Purchaser with (i) all material notices received and financial statements and operating reports prepared in connection with any of the documents evidencing or securing any loans encumbering the Properties and Properties, (ii) all financial statements and operating reports routinely prepared by Seller relating to the Acquired Assets, (iii) reports regarding changes in Liens, (iv) reports on all litigation or other proceedings which affect the valuation of the Properties or the Purchased Assets;involve disputes concerning Real Estate Taxes, (iv) changes in use restrictions or REAs, and (v) decisions to develop or build upon any Property. (d) Promptly notify Purchaser of any material emergency casualty, condemnation or other material change at adverse event in connection with the Properties;Acquired Assets, and promptly notify Purchaser upon Seller's receipt of any written notice of breach or default under any of the Leases which are identified on SCHEDULE 6.3, Ground Leases, Subleases, Assumed Loan Documents, REAs, and/or Contracts, any violation of applicable Law in connection with the Acquired Assets and/or any Tenant vacating its leased premises within a Property and/or the termination of negotiations with respect to any prospective tenant identified SCHEDULE 6.2 or any other prospective tenant in connection with the Master Leased Spaces. (e) Maintain its books and records in accordance with the accounting principles currently utilized by it, consistently applied, and not change in any material manner any of their methods, principles or practices of accounting currently in effect, except as may be required by applicable Law or GAAP; (f) Duly and timely file all reports, Tax Returns and other documents required to be filed with federal, state, local and other Governmental Entities, subject to extensions permitted by LawLaw and to continue to comply with all the obligations under the Assumed Loan Documents; (g) Not Except for any transfers contemplated by, or otherwise necessary to effect the purposes of, and in accordance with, this Agreement (or as consented to in writing by Purchaser), not (i) acquire acquire, transfer (including any change of ownership of control of any applicable Property), sell, ground lease or sell or ground lease, otherwise encumber any of the Properties and/or option or enter into any option or agreement to acquire or sell or acquire, transfer (including any change of ownership of control of any applicable Property), sell, ground lease, or exercise an option or contract to acquire, transfer, sell or ground lease any of the Properties or, other than the parcels described in Schedule 4.5(h) of the Disclosure Schedule, any part thereof or direct or indirect interest therein, other than leasing in accordance with Section 6.2Properties, (ii) make any loans or advances to any other Person with respect to the Properties, (iii) encumber or subject to any Lien any of the Properties or Purchased Acquired Assets, the Master LLC membership interests, the membership interests of any Master LLC Subsidiary, and/or the Properties (iiiexcept for agreements, easements and/or declarations in which Seller has obtained Purchaser's prior written consent), (iv) except as set forth on SCHEDULE 7.19-1, enter into any new agreement or commitment affecting the Properties, or amend any existing agreement or commitment affecting the Properties, to improve, develop or construct improvements (other than Construction Obligations), (v) except to effect the transactions contemplated under this Agreement, modify, amend, supplement, terminate or assign the Benderson Loan Documents, the documents evidencing the Assumed Liabilities, (vi) modify, amend, supplement, terminate or assign the Assumed Loan Documents, the documents evidencing the Assumed Liabilities, the REAs, and the Leases (but subject to Section 6.2 below), Ground LeasesLeases and Subleases, (ivvi) (Intentionally Omitted)to incur any Indebtedness encumbering the Master LLC membership interests, the membership interests of any Master LLC Subsidiary and/or the Properties other than the Assumed Indebtedness, (vvii) transfer, sell sell, assign or assign encumber the Acquired Assets, the membership interests of any Master LLC Subsidiary and/or the Properties, or any Material Contracts, or (viviii) except as provided in Section 6.2, enter into or modify, amend, supplement, or assign any management, operating, listing, brokerage, supply and maintenance agreement affecting the Properties that is not terminable by Seller or a Subsidiary without penalty upon the sale Transfer of the Purchased Assets or upon 30 days prior written notice or lessAcquired Assets; (h) Not permit the outstanding principal balance due under the Key Credit Agreement to exceed $47,000,000; (i) Not modifyExcept as otherwise provided in Section 6.1(r), amend, supplement, terminate or assign not amend any material terms of any Material Contract in a manner adverse without first obtaining Purchaser's prior written consent; (i) Not modify or terminate the existing insurance coverage with respect to the Purchaser Properties, increase the amount of any deductibles or shift coverage to insurance companies with a financial strength rating of not less than "Excellent (A or A-)" under Best's Key Rating Guide Property-Casualty, published by A.M. Best Company, without obtaining the prior written consent of Purchaser, which consent shall not be unreasonably withheld, conditioned or delayed; (j) Keep in full force and effect with respect to the Properties policies of insurance providing coverage at least as extensive as the policies covering the Properties on the date hereof; (k) From and after the expiration of the Contract Due Diligence Period, provide Purchaser with (i) access to the computers, including the YARDI system, with respect to the Properties and the Purchased Assets and (ii) appropriate personnel to assist with same so that Purchaser can start to transition the management and ownership of the Properties; (l) Intentionally Omitted; (m) Use commercially reasonable efforts to obtain the consents required to consummate the Transfer and the other transactions contemplated by this Agreement, including those described in Schedule 4.2(b) of the Disclosure Schedule and the consents of the holders of the Assumed Indebtedness and the ground lessors under the Ground Leases; (n) Provide to Purchaser's title insurance company the form of the affidavits attached as Exhibit 6.1(n) of the Disclosure Schedule and other customary and commercially reasonable (as determined by Seller) affidavits (but not a non-imputation affidavit), documents and information necessary for such title insurance company to insure title to the Properties subject only to the Permitted Encumbrances for the benefit of Purchaser; (o) In the event Seller becomes aware that any of Seller's representations and warranties made hereunder are inaccurate, untrue or incorrect in any material respect, Seller shall promptly notify Purchaser with a reasonably detailed description of the inaccuracy; (p) Not settle any insurance claims or other litigation that would materially and adversely affect the Properties after the Closing without Purchaser's consent; (q) Cooperate with Purchaser to have any letters of credit in respect of any Tenant Deposits assigned to Purchaser or hold any letters of credit of and draw on them at Purchaser's request until a new letter of credit may be issued to Purchaser or its designee. This obligation of Seller will survive Closing; (r) Not apply any Tenant Deposits to delinquent Rentals or other amounts owed by a Tenant while a Tenant is in possession of the space under its Lease without Purchaser's consent; (s) Intentionally Omitted; (t) Comply in all material respects with the terms and conditions of the Assumed Indebtedness applicable to the Properties, Seller and its Subsidiaries; (u) Except with respect to the Redevelopment Properties, not enter into a contract or agreement that would be a Material Contract without Purchaser's consent unless the expenditures thereunder are included in the Budgets or are capital expenditures not in excess of 10% of the aggregate of the capital expenditures in the Budget or the Material Contract relates to tenant work to be performed under an existing Lease or a new Lease entered into pursuant to Section 6.2; (v) At or prior to Closing terminate all property management agreements and leasing agreements with respect to the Properties, including without limitation, the agreement with Divaris Real Estate, Inc., all at Seller's sole cost and expense; and