Common use of Conduct of the Business Pending Closing Clause in Contracts

Conduct of the Business Pending Closing. From the date hereof until the Closing, each Seller shall: (a) conduct its Business in the usual, regular and ordinary course consistent with such Seller’s past practices; use its commercially reasonable efforts to preserve intact the present organization of such Seller; and use its commercially reasonable efforts (with no obligation to increase such persons’ compensation or benefits) to keep available the services of the present officers and Employees of such Seller and to preserve such Seller’s goodwill, consistent with past practices; (b) maintain the Acquired Assets in their present operating condition (ordinary wear and tear excepted); (c) observe and remain in compliance in all material respects with all statutes, laws, rules, regulations, orders, decrees and ordinances applicable to Seller or the operation of the Business (unless stayed pending appeal of such law or decision), subject to changes in laws or interpretations of such laws (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreement; (d) maintain and keep in full force and effect all of the insurance currently maintained by Seller, unless replaced by substantially similar policies that do not reduce the amount of coverage compared to those policies currently in effect; (e) not sell, mortgage, pledge, lease, or otherwise transfer, or dispose of or distribute any of its assets used in connection with the Business or enter into any agreement with respect to the foregoing, other than in the ordinary course of Business consistent with such Seller’s past practices; (f) pay all liabilities and obligations as and when due, including all Taxes, other than such liabilities or obligations Seller is contesting in good faith by appropriate proceedings and has set aside on its books adequate reserves with respect thereto; (g) not alter, modify or accelerate its existing collection levels of accounts receivables, or, other than in its ordinary course of its Business and consistent with past practice, write-off as uncollectible any accounts or receivables, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreement; (h) except with respect to Excluded Employees, not declare or increase the benefits or compensation payable or to become payable to any of Seller’s Employees or any bonus, profit sharing or other extraordinary compensation to any Employee of Seller, or enter into any agreement with respect to the foregoing for any such Employee, except in the ordinary course of business and consistent with past practices; (i) not make or enter into any agreement to make any capital expenditure on behalf of Sellers in excess of$50,000 individually or $200,000 in the aggregate, other than pursuant to existing contracts and other than any dispute with the Business Software Alliance; (j) not amend or terminate any contract or agreement required to be listed on Schedule 3.12(a) and, except in the ordinary course of Business on a basis consistent with such Seller’s past practices, not enter into any material contract or agreement with any other individual, entity or governmental authority, including, without limitation, any employment agreement not terminable at will by Sellers; (k) maintain its books, records and accounts, and maintain a system of accounting, as may be required or as may be necessary to permit the preparation of audited financial statements in accordance with GAAP and in compliance with the regulations of any governmental or regulatory authority having jurisdiction over it or any of its properties, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, arbitration, or administrative judgments, rulings, orders and the like that occur after the date of this Agreement; (l) continue reasonably to protect all confidential information and trade secrets of, each Seller, in accordance with such Seller’s past practices; (m) not incur any indebtedness or any liabilities other than in the ordinary course of Business consistent with such Seller’s past practices; (n) not make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Seller, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to Seller, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax, except as consistent with past practice, that would result in a Lien on the Acquired Assets; or (o) be allowed to make cash distributions to its members and owners.

Conduct of the Business Pending Closing. From During the period from the date hereof until of this Agreement to the Closing, except as consented to in writing by Buyer or as expressly contemplated in this Agreement, Seller Parties shall (or shall cause the applicable Target Company to) (and, to the extent applicable, cause each Seller shall:of the applicable third party managers of the Properties to): (a) conduct operate the Properties (i) in substantially the same manner in which it has operated the Properties during its Business period of ownership prior to the execution of this Agreement and (ii) in compliance with all Laws applicable to the usual, regular and ordinary course consistent with such Seller’s past practices; use its commercially reasonable efforts to preserve intact the present organization of such Seller; and use its commercially reasonable efforts (with no obligation to increase such persons’ compensation or benefits) to keep available the services of the present officers and Employees of such Seller and to preserve such Seller’s goodwill, consistent with past practicesProperties; (b) maintain preserve the Acquired Assets in their present operating condition Properties (ordinary normal wear and tear excepted)exempted) substantially in conformance with the applicable Target Company’s past practices, and subject to casualty and condemnation, provided that other than as required pursuant to Section 5.8 hereof, the foregoing shall not obligate any Seller Party or Target Company to take any action which is required to be performed by a tenant and not a Target Company pursuant to any Space Lease or to make any capital expenditure or perform any capital work other than as required pursuant to Section 5.8 hereof; (c) observe maintain the Target Company’s books and remain records in compliance accordance with GAAP consistently applied on a fair value basis and not change in all any material respects with all statutesmanner any of its methods, laws, rules, regulations, orders, decrees and ordinances applicable to Seller principles or the operation practices of the Business (unless stayed pending appeal of such law or decision), subject to changes accounting in laws or interpretations of such laws (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after effect at the date of this Agreementthe Most Recent Balance Sheet, except as may be required by applicable Law or GAAP; (d) maintain duly and keep in full force timely file all material reports, Tax Returns and effect all of other documents required to be filed by the insurance currently maintained Cabot REIT, the Operating Partnership or any Partnership Subsidiary with federal, state, local and other authorities, subject to extensions permitted by Seller, unless replaced by substantially similar policies that do not reduce the amount of coverage compared to those policies currently in effectLaw; (e) not sellmake, mortgagechange or revoke any Tax election, pledge, lease, or otherwise transfer, or dispose of or distribute change any of its assets used in connection with the Business or enter into any agreement accounting period with respect to the foregoing, other than in the ordinary course of Business consistent with such Seller’s past practices; (f) pay all liabilities and obligations as and when due, including all material Taxes, other than such liabilities or obligations Seller is contesting in good faith by appropriate proceedings and has set aside on its books adequate reserves with respect thereto; (g) not alter, modify or accelerate its existing collection levels of accounts receivables, or, other than in its ordinary course of its Business and consistent with past practice, write-off as uncollectible any accounts or receivables, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreement; (h) except with respect to Excluded Employees, not declare or increase the benefits or compensation payable or to become payable to any of Seller’s Employees or any bonus, profit sharing or other extraordinary compensation to any Employee of Seller, or enter into any agreement with respect to the foregoing for any such Employee, except in the ordinary course of business and consistent with past practices; (i) not make or enter into any agreement to make any capital expenditure on behalf of Sellers in excess of$50,000 individually or $200,000 in the aggregate, other than pursuant to existing contracts and other than any dispute with the Business Software Alliance; (j) not amend or terminate any contract or agreement required to be listed on Schedule 3.12(a) and, except in the ordinary course of Business on a basis consistent with such Seller’s past practices, not enter into any material contract or agreement with any other individual, entity or governmental authority, including, without limitation, any employment agreement not terminable at will by Sellers; (k) maintain its books, records and accounts, and maintain a system of accounting, as may be required or as may be necessary to permit the preparation of audited financial statements in accordance with GAAP and in compliance with the regulations of any governmental or regulatory authority having jurisdiction over it or any of its properties, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, arbitration, or administrative judgments, rulings, orders and the like that occur after the date of this Agreement; (l) continue reasonably to protect all confidential information and trade secrets of, each Seller, in accordance with such Seller’s past practices; (m) not incur any indebtedness or any liabilities other than in the ordinary course of Business consistent with such Seller’s past practices; (n) not make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended material amendment to a Tax Return, enter into any closing agreement, settle or compromise any proceeding with respect to any material Tax claim or assessment relating to the SellerCabot REIT, the Operating Partnership or any Partnership Subsidiary, knowingly surrender any right to claim a refund of material Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim Taxes of the Cabot REIT, the Operating Partnership or assessment relating to Seller, any Partnership Subsidiary or take any other similar action relating to the filing of any Tax Return or the payment of any Tax; provided, except that, nothing in this Agreement shall preclude the Cabot REIT from designating dividends paid by it as “capital gain dividends” within the meaning of Section 857 of the Code, making a “consent dividend” election within the meaning of Section 565 of the Code or making or, after consultation with Buyer, revoking any election or taking any other action reasonably necessary to preserve the status of the Cabot REIT as a REIT under the Code; (f) not enter into, cancel or modify in any material respect any Ground Lease (or guaranty thereof) or any reciprocal easement agreement or similar agreement affecting a Property; (g) not amend, restate or otherwise modify the Organizational Documents of any Target Company; (h) not directly or indirectly redeem, purchase or otherwise acquire any shares of capital stock, membership interests or partnership interests or any option, warrant or right to acquire, or security convertible into, shares of capital stock, membership interests, or partnership interests of any Person; (i) not sell, lease (other than pursuant to Section 4.2), mortgage, subject to Lien (subject to Section 5.1(f), (g), (h), and (i)) or otherwise dispose of any of its personal property or intangible property; (j) not make any loans, advances or capital contributions to, or investments in, any other Person, other than loans, advances and capital contributions to the Partnership Subsidiaries in existence on the date hereof (and, for the avoidance of doubt, Tenant Inducements and ordinary course trade payables are not prohibited by this sub-clause (j)); (k) not permit any Target Company to incur any Indebtedness (other than (i) ordinary course trade payables, and (ii) draws by the Operating Partnership on its existing credit facility that is an Existing Loan that are in the ordinary course or which are used to fund obligations of Seller Parties under this Agreement) or guarantee the indebtedness of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing; (l) not sell, transfer or otherwise dispose of any of its ownership or voting interests in, or resign as member, manager or partner of, any of the Target Companies other than pursuant to Section 4.4 hereof; (m) continue to carry the Insurance Policies through the Closing, and not allow any termination, cancellation or material breach of the Insurance Policies to occur or exist, unless Seller Parties enter into insurance policies substantially consistent with past practicethe Insurance Policies at or prior to any such termination or cancellation (such Insurance Policies will be cancelled as of Closing, and Buyer with respect to premiums for the Insurance Policies relating to the period from and after Closing shall not be responsible for the payment of any premiums or obligated to make any adjustment pursuant to Section 1.4 for the benefit of Seller Parties with respect to any such premiums); (n) not take any action that would result cause any of the representations or warranties of Seller Parties contained herein to become inaccurate in a Lien on any material respect or any of the Acquired Assets; orcovenants of Seller Parties to be breached in any material respect; (o) not admit any Person as a member or partner of any Target Company; (p) not declare, set aside or pay any non-cash dividend or non-cash distribution in respect of, or redeem or otherwise acquire, capital stock, Interests, membership interests or other securities or voting or ownership interests (for the avoidance of doubt, the Target Companies shall be allowed permitted to make cash distributions dividends and distributions); (q) not merge, consolidate, convert or otherwise change entity form; (r) not make any structural alterations or additions to any Property except as (a) required by any Space Lease or Disclosed Contract or (b) required by this Agreement; (s) not sell or otherwise dispose of any Property, except or to the extent (i) that such Property is the subject of a binding contract in existence on the date of this Agreement and disclosed in Schedule 2.9(l) of the Seller Parties Disclosure Letter, or (ii) as provided in Sections 5.21, 5.22 or 5.23; (t) not cancel, compromise or settle any suit, litigation, arbitration, claim, action or proceeding, unless such compromise or settlement results in a full release of Buyer (or the applicable Target Company) and would not otherwise materially adversely affect Buyer (or the applicable Target Company) after Closing; (u) advise Buyer promptly of any litigation, arbitration proceeding or administrative hearing (including condemnation) before any Governmental Entity which, to the Seller Parties’ Knowledge, (i) affects any Target Company or Property, which is instituted after the date hereof (or of which Seller Parties are first notified after the date hereof) and (ii) if adversely determined, would adversely affect (A) Seller Parties’ ability to consummate the transactions contemplated by this Agreement, (B) the ownership of any Target Company or Property or (C) the use, value or operation of any Target Company or Property; (v) deliver to Buyer promptly after receipt thereof copies of any written notices of violations regarding the Properties received by Seller Parties; (w) advise Buyer promptly of any written notices of default received by any Seller Party or Target Company under any Space Lease, Ground Lease, Existing Loan, or Contract after the date hereof; (x) not acquire or agree to acquire any real property or material personal property or acquire or agree to acquire in any manner (including by merger, consolidation or acquisition of stock or assets) any interest in any Person (or equity interests thereof); (y) not materially change the nature or the scope of its members business or enter into a new line of business; (z) not enter into any agreement or arrangement that limits or otherwise restricts any Target Company from engaging or competing in any line of business in which it is currently engaged or currently contemplates to be engaged or in any geographic area; (aa) not hire any employee; (bb) perform, or cause its agents to perform, in all material respects, all obligations of landlord or lessor under the Space Leases; (cc) not change or attempt to change, directly or indirectly, the current zoning of any Property in any manner; (dd) promptly advise Buyer of any change, update or supplement to the Banking Relationship Information; (ee) not cancel, amend or modify, in a manner materially adverse to any Property, any license or permit held by the Operating Partnership with respect to such Property or any part thereof which would be binding upon Buyer after the Closing; and/or (ff) ensure that the Cabot REIT will be organized and ownersoperated in a manner that would permit it to qualify as a REIT under Section 856 of the Code through the Closing Date (determined as if the taxable year of the Cabot REIT ended at the Closing on the Closing Date and without regard to the distribution requirements).

Conduct of the Business Pending Closing. From the date hereof until the Closing, each Seller shall: (a) conduct its Business in the usual, regular and ordinary course consistent with such Seller’s past practices; use its commercially reasonable efforts to preserve intact the present organization of such Seller; and use its commercially reasonable efforts (with no obligation to increase such persons’ compensation or benefits) to keep available the services of the present officers and Employees of such Seller and to preserve such Seller’s goodwill, consistent with past practices; (b) maintain the Acquired Assets in their present operating condition (ordinary wear and tear excepted); (c) observe and remain in compliance in all material respects with all statutes, laws, rules, regulations, orders, decrees and ordinances applicable to Seller or the operation of the Business (unless stayed pending appeal of such law or decision), subject to changes in laws or interpretations of such laws (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreement; (d) maintain and keep in full force and effect all of the insurance currently maintained by Seller, unless replaced by substantially similar policies that do not reduce the amount of coverage compared to those policies currently in effect; (e) not sell, mortgage, pledge, lease, or otherwise transfer, or dispose of or distribute any of its assets used in connection with the Business or enter into any agreement with respect to the foregoing, other than in the ordinary course of Business consistent with such Seller’s past practices; (f) pay all liabilities and obligations as and when due, including all Taxes, other than such liabilities or obligations Seller is contesting in good faith by appropriate proceedings and has set aside on its books adequate reserves with respect thereto; (g) not alter, modify or accelerate its existing collection levels of accounts receivables, or, other than in its ordinary course of its Business and consistent with past practice, write-off as uncollectible any accounts or receivables, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreement; (h) except with respect to Excluded Employees, not declare or increase the benefits or compensation payable or to become payable to any of Seller’s Employees or any bonus, profit sharing or other extraordinary compensation to any Employee of Seller, or enter into any agreement with respect to the foregoing for any such Employee, except in the ordinary course of business and consistent with past practices; (i) not make or enter into any agreement to make any capital expenditure on behalf of Sellers in excess of$50,000 of $50,000 individually or $200,000 in the aggregate, other than pursuant to existing contracts and other than any with respect to that certain dispute with the Business Software Alliance; (j) not amend or terminate any contract or agreement required to be listed on Schedule 3.12(a) and, except in the ordinary course of Business on a basis consistent with such Seller’s past practices, not enter into any material contract or agreement with any other individual, entity or governmental authority, including, without limitation, any employment agreement not terminable at will by Sellers; (k) maintain its books, records and accounts, and maintain a system of accounting, as may be required or as may be necessary to permit the preparation of audited financial statements in accordance with GAAP and in compliance with the regulations of any governmental or regulatory authority having jurisdiction over it or any of its properties, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, arbitration, or administrative judgments, rulings, orders and the like that occur after the date of this Agreement; (l) continue reasonably to protect all confidential information and trade secrets of, each Seller, in accordance with such Seller’s past practices; (m) not incur any indebtedness or any liabilities other than in the ordinary course of Business consistent with such Seller’s past practices; (n) not make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Seller, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to Seller, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax, except as consistent with past practice, that would result in a Lien on the Acquired Assets; or; (o) be allowed to make cash distributions to its members and owners; (p) notwithstanding anything to the contrary herein, the Sellers may materially modify the way it does business in Georgia, including, but not limited to, modifying or canceling any Assumed Contracts relating to its business in Georgia.

Conduct of the Business Pending Closing. From Each Seller --------------------------------------- covenants and agrees that, prior to the date hereof until earlier of the ClosingClosing or termination of this Agreement, each Seller shallexcept as (x) set forth in the Disclosure Schedule, (y) otherwise agreed to by Purchaser, or (z) otherwise required by the Bankruptcy Court or resulting from the Bankruptcy Proceedings: (ai) conduct its Business in the usual, regular and ordinary course consistent with such Seller’s past practices; use its commercially reasonable efforts to preserve intact the present organization of such Seller; and use its commercially reasonable efforts (with no obligation to increase such persons’ compensation or benefits) to keep available the services of the present officers and Employees of such Seller and to preserve such Seller’s goodwill, consistent with past practices; (b) maintain will operate the Acquired Assets in their present operating condition (ordinary wear and tear excepted); (c) observe and remain in compliance in all material respects with all statutes, laws, rules, regulations, orders, decrees and ordinances applicable to Seller or the operation of the Business (unless stayed pending appeal of such law or decision), subject to changes in laws or interpretations of such laws (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreement; (d) maintain and keep in full force and effect all of the insurance currently maintained by Seller, unless replaced by substantially similar policies that do not reduce the amount of coverage compared to those policies currently in effect; (e) not sell, mortgage, pledge, lease, or otherwise transfer, or dispose of or distribute any of its assets used in connection with the Business or enter into any agreement with respect to the foregoing, other than in the ordinary course of Business its business, consistent with such Seller’s past practicespractice as a debtor-in-possession; (fii) pay all liabilities and obligations as and when due, including all Taxes, other than such liabilities or obligations Seller is contesting in good faith by appropriate proceedings and has set aside on its books adequate reserves will not encumber the Assets with respect thereto; (g) not alter, modify or accelerate its existing collection levels of accounts receivables, or, other than in its ordinary course of its Business and consistent with past practice, write-off as uncollectible any accounts or receivables, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreement; (h) Liens except with respect to Excluded Employees, not declare or increase the benefits or compensation payable or to become payable to any of Seller’s Employees or any bonus, profit sharing or other extraordinary compensation to any Employee of Seller, or enter into any agreement with respect to the foregoing for any such Employee, except Liens incurred in the ordinary course of its business or with Permitted Liens or Liens in favor of the Pre-Petition Lenders or the DIP Lenders (and consistent with past practicesany such Liens in favor of the Pre-Petition Lenders or DIP Lenders shall not survive the Closing); (iiii) such Seller will not make amend, in any material respect, any Revenue Leases or enter into any agreement to make any capital expenditure on behalf of Sellers in excess of$50,000 individually or $200,000 in the aggregate, other than pursuant to existing contracts and other than any dispute with the Business Software Alliance; (j) not amend or terminate any contract or agreement required to be listed on Schedule 3.12(a) andGround Leases, except for amendments in the ordinary course of Business on a basis consistent with such Seller’s past practicesits business, not enter into any material contract or agreement with any other individual, entity or governmental authority, includingand, without limitationlimiting the foregoing, the extension or renewal of any employment agreement Revenue Leases or Ground Leases shall not terminable be deemed to be an amendment for purposes of this Section 7.01, provided, that (x) such Seller shall not extend -------- or renew any Revenue Lease at will by Sellersa rental rate that is less than the present rental rate thereunder, without the consent of Purchaser which consent shall not be unreasonably withheld or delayed, and (y) such Seller shall not extend or renew any Ground Lease at a rental rate that exceeds the greater of (1) one hundred twenty five percent (125%) of the present rental rate thereunder or (2) $500 per month more than the present rental rate thereunder, without the consent of Purchaser which consent shall not be unreasonably withheld or delayed; (kiv) maintain its books, records and accounts, and maintain a system of accounting, as may be required or as may be necessary to permit the preparation of audited financial statements in accordance with GAAP and in compliance with the regulations such Seller shall notify Purchaser of any pending or threatened governmental investigations or regulatory authority having jurisdiction over it or any of its propertieshearings, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, arbitration, or administrative judgments, rulings, orders and the like that occur after the date of this Agreement; (l) continue reasonably to protect all confidential information and trade secrets of, each Seller, in accordance with within such Seller’s past practices; (m) not incur any indebtedness or any liabilities other than in the ordinary course of Business consistent with such Seller’s past practices; (n) not make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Seller, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to Seller, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax, except as consistent with past practice's Knowledge, that would result in be expected to materially adversely affect the Assets taken as a Lien on the Acquired Assetswhole; orand (ov) be allowed to make cash distributions to its members and ownerssuch Seller will comply with all Applicable Laws in all material respects, the compliance with which is required for consummation of the transactions contemplated by this Agreement.

Conduct of the Business Pending Closing. From Subject to any obligations as a debtor or debtor-in-possession under the Bankruptcy Code, from the date hereof until the ClosingClosing Date, each Seller shallSellers shall use commercially reasonable efforts to conduct the Business in the ordinary course of business. Except as otherwise contemplated under this Agreement or as required by applicable Legal Requirements, from the date hereof until the Closing Date, without the prior written consent of Buyers: (a) conduct its Business Sellers shall not acquire a material amount of assets of any other Person; (b) Sellers shall not enter into any contract or agreement which will be an Assumed Contract with a term greater than one year or providing for payments by Buyers after the Closing in the usualaggregate of greater than $100,000; (c) Sellers shall not sell, regular and lease, license, or otherwise surrender, relinquish, encumber, or dispose of the Transferred Assets other than dispositions of current assets (as defined under GAAP) or used or obsolete equipment in the ordinary course consistent of business; provided such used or obsolete equipment is replaced with reasonable items of replacement equipment prior to the closing to the extent that such Seller’s past practicesused or obsolete equipment is necessary for the conduct of the Business by Sellers as currently conducted; and provided further that Sellers may continue negotiating with the New Mexico State Engineer's Office regarding title to the Water Rights relating to the Pecos River, but shall not enter into any agreement or letter of intent for the sale, lease, transfer, deposit in any "water bank" or other disposition of any Water Rights; (d) Sellers shall not change any method of accounting or accounting practice used by them, except for any change required by GAAP; (e) Sellers shall use its their commercially reasonable efforts to preserve intact the present organization of such Seller; their relationships with third parties and use its commercially reasonable efforts (with no obligation to increase such persons’ compensation or benefits) to keep available the services currently provided to Sellers (excluding the impact of the present officers and Employees Sellers' rejection or potential rejection of such Seller and any contracts or Sellers' good faith business judgment to preserve such Seller’s goodwill, consistent terminate any contract with past practices; (b) maintain the Acquired Assets in their present operating condition (ordinary wear and tear exceptedany vendor); (c) observe and remain in compliance in all material respects with all statutes, laws, rules, regulations, orders, decrees and ordinances applicable to Seller or the operation of the Business (unless stayed pending appeal of such law or decision), subject to changes in laws or interpretations of such laws (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreement; (d) maintain and keep in full force and effect all of the insurance currently maintained by Seller, unless replaced by substantially similar policies that do not reduce the amount of coverage compared to those policies currently in effect; (e) not sell, mortgage, pledge, lease, or otherwise transfer, or dispose of or distribute any of its assets used in connection with the Business or enter into any agreement with respect to the foregoing, other than in the ordinary course of Business consistent with such Seller’s past practices; (f) pay all liabilities and obligations as and when due, including all Sellers shall not obtain any rulings or make any elections with respect to Taxes, other than or enter into any agreements with any Taxing Authority, to the extent any such liabilities elections or obligations Seller is contesting in good faith by appropriate proceedings and has set aside agreements have or could reasonably be expected to have any affect on its books adequate reserves with respect theretothe Transferred Assets after the Closing; (g) Sellers shall not alterestablish or increase the benefits under, or promise to establish, modify or accelerate its increase the benefits under, any employee benefit plan (as defined in Section 3(3) of ERISA) in which Employees participate or otherwise increase the compensation payable to any Employees, except in accordance with existing collection levels of accounts receivables, or, other than in its ordinary course of its Business plans and agreements consistent with past practice, write-off as uncollectible or establish, adopt or enter into any accounts collective bargaining agreement, service agreement, employment contract or receivablesrelated agreement (written or oral) with any Employee, other than as a result of changes or modify or amend any agreements contained in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutesDisclosure Schedule, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreement;Section 5.15; and (h) except with respect Sellers shall not agree or commit to Excluded Employees, not declare or increase the benefits or compensation payable or to become payable to do any of Seller’s Employees or any bonus, profit sharing or other extraordinary compensation to any Employee of Seller, or enter into any agreement with respect to the foregoing for any such Employee, except in the ordinary course of business and consistent with past practices; (i) not make or enter into any agreement to make any capital expenditure on behalf of Sellers in excess of$50,000 individually or $200,000 in the aggregate, other than pursuant to existing contracts and other than any dispute with the Business Software Alliance; (j) not amend or terminate any contract or agreement required to be listed on Schedule 3.12(a) and, except in the ordinary course of Business on a basis consistent with such Seller’s past practices, not enter into any material contract or agreement with any other individual, entity or governmental authority, including, without limitation, any employment agreement not terminable at will by Sellers; (k) maintain its books, records and accounts, and maintain a system of accounting, as may be required or as may be necessary to permit the preparation of audited financial statements in accordance with GAAP and in compliance with the regulations of any governmental or regulatory authority having jurisdiction over it or any of its properties, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, arbitration, or administrative judgments, rulings, orders and the like that occur after the date of this Agreement; (l) continue reasonably to protect all confidential information and trade secrets of, each Seller, in accordance with such Seller’s past practices; (m) not incur any indebtedness or any liabilities other than in the ordinary course of Business consistent with such Seller’s past practices; (n) not make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Seller, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to Seller, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax, except as consistent with past practice, that would result in a Lien on the Acquired Assets; or (o) be allowed to make cash distributions to its members and ownersforegoing.

Conduct of the Business Pending Closing. From a. Subject to any obligations as a debtor or debtor-in-possession under the date hereof until Bankruptcy Code, Seller shall cause the Closing, each Seller shall: (a) Transferred Subsidiaries to use all commercially reasonable efforts to conduct its the Business in the usual, regular and ordinary course consistent with such Seller’s past practices; of business. Seller shall cause the Transferred Subsidiaries to use its all commercially reasonable efforts to preserve intact the present organization of such Seller; their business organizations and use its commercially reasonable efforts (relationships with no obligation to increase such persons’ compensation or benefits) third parties and to keep available the services of the their present officers and Employees key employees, subject to the terms of such this Agreement. Seller shall also cause the Transferred Subsidiaries to maintain their assets in a state of repair and to preserve such Seller’s goodwill, condition that complies with all Legal Requirements and is consistent with past practicesthe ordinary course of business. Except as otherwise contemplated under this Agreement, from the date hereof until the Closing Date, without the prior written consent of Buyer: (i) Seller shall cause the Transferred Subsidiaries not to adopt or propose any change in its Organizational Documents; (bii) maintain Seller shall cause the Acquired Assets in their present operating condition (ordinary wear and tear excepted)Transferred Subsidiaries not to declare, set aside, or pay any dividend, interest or other distribution with respect to any of its Equity Interests, or split, combine, or reclassify any of its Equity Interests, or repurchase, redeem, or otherwise acquire any of its Equity Interests; (ciii) observe and remain in compliance in all Seller shall cause the Transferred Subsidiaries not to merge or consolidate with any other Person or acquire a material respects with all statutes, laws, rules, regulations, orders, decrees and ordinances applicable to Seller or the operation amount of the Business (unless stayed pending appeal assets of such law or decision), subject to changes in laws or interpretations of such laws (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreementother Person; (div) maintain Seller shall not and keep in full force and effect all of shall cause the insurance currently maintained by SellerTransferred Subsidiaries not to lease, unless replaced by substantially similar policies that do not reduce the amount of coverage compared to those policies currently in effect; (e) not sell, mortgage, pledge, leaselicense, or otherwise transfersurrender, relinquish, encumber, or dispose of or distribute any assets of its assets used in connection with the Business or enter into any agreement with respect to the foregoing, Transferred Subsidiaries other than dispositions of current assets (as defined under GAAP) in the ordinary course of Business consistent with such Seller’s past practicesbusiness; (fv) pay all liabilities and obligations as and when dueSeller shall use its Best Efforts to cause the Transferred Subsidiaries not to change any method of accounting or accounting practice used by it, including all Taxes, other than such liabilities or obligations Seller is contesting in good faith except for any change required by appropriate proceedings and has set aside on its books adequate reserves with respect theretoGAAP; (gvi) Seller shall not alterand shall use its Best Efforts to cause the Transferred Subsidiaries not to establish or increase the benefits under, or promise to establish, modify or accelerate its increase the benefits under, any Employee Benefit Plan or otherwise increase the compensation payable to any Facility Employees, except in accordance with existing collection levels of accounts receivables, or, other than in its ordinary course of its Business plans and agreements consistent with past practice, write-off as uncollectible or establish, adopt or enter into any accounts collective bargaining agreement, service agreement, employment contract or receivablesrelated agreement (written or oral) with any Facility Employee, other than as a result of changes or modify or amend any agreements contained in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutesDisclosure Schedule, ordinances, regulations, administrative proceedings, orders or any similar actionsSection 5.16(c)(1), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreement; (hvii) except Seller shall not and shall cause the Transferred Subsidiaries not to take any action or omit to take any action which could reasonably be expected to cause the number of Facility Employees on the date hereof to decrease significantly; (viii) Seller shall use its Best Efforts to cause the Transferred Subsidiaries not to obtain any rulings or make any elections with respect to Excluded Employees, not declare or increase the benefits or compensation payable or to become payable to any of Seller’s Employees or any bonus, profit sharing or other extraordinary compensation to any Employee of SellerTaxes, or enter into any agreement agreements with respect any Taxing Authority; and (ix) Seller shall not and shall cause the Transferred Subsidiaries not to agree or commit to do any of the foregoing. b. Seller shall not, and shall use its Best Efforts to cause the Transferred Subsidiaries not to, except to the foregoing for any such Employeeextent necessary to comply with the requirements of applicable Legal Requirements, except in the ordinary course of business and consistent with past practices; (i) not make take, agree, or enter into commit to take, any agreement to action that would make any capital expenditure representation or warranty of Seller hereunder inaccurate in any respect at, or as of any time prior to, the Closing Date, (ii) omit, or agree or commit to omit, to take any action necessary to prevent any such representation or warranty from being inaccurate in any respect on behalf of Sellers in excess of$50,000 individually the Closing Date, or $200,000 in the aggregate(iii) take, other than pursuant agree, or commit to existing contracts and other than any dispute with the Business Software Alliance; (j) not amend or terminate any contract or agreement required to be listed on Schedule 3.12(a) and, except in the ordinary course of Business on a basis consistent with such Seller’s past practices, not enter into any material contract or agreement with any other individual, entity or governmental authority, including, without limitationtake, any employment agreement not terminable at will by Sellers; (k) maintain its books, records and accounts, and maintain a system of accounting, as may be required or as may be necessary to permit the preparation of audited financial statements in accordance with GAAP and in compliance with the regulations of any governmental or regulatory authority having jurisdiction over it or any of its properties, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, arbitration, or administrative judgments, rulings, orders and the like that occur after the date of this Agreement; (l) continue reasonably to protect all confidential information and trade secrets of, each Seller, in accordance with such Seller’s past practices; (m) not incur any indebtedness or any liabilities other than in the ordinary course of Business consistent with such Seller’s past practices; (n) not make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Seller, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to Seller, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax, except as consistent with past practice, that would result in, or is reasonably likely to result in, any of the conditions set forth in a Lien on the Acquired Assets; or (o) be allowed to make cash distributions to its members and ownersSection 9 not being satisfied.

Conduct of the Business Pending Closing. From the date hereof of this Agreement until the Closingearlier of (x) the Effective Date and (y) the termination of this Agreement, except as (i) otherwise contemplated hereby or provided herein or by or in the Investment Agreement, (ii) set forth in Schedule 4.1 of the Disclosure Letter, (iii) required by applicable Law or Governmental Entity or (iv) consented to in writing by the Parent (such consent not to be unreasonably withheld or delayed), the Company shall, and shall cause each Seller shallof its subsidiaries to: (ai) conduct carry on its Business business in the usual, regular and ordinary course consistent with such Seller’s past practices; practice, (ii) use its commercially reasonable efforts to preserve intact the its present organization of such Seller; business organizations, operations and assets, (iii) use its commercially reasonable efforts (with no obligation to increase such persons’ compensation or benefits) to keep available the services of its material customers, suppliers, distributors, licensors, and licensees, in each case in the present officers and Employees ordinary course of such Seller and to preserve such Seller’s goodwill, business consistent with past practicespractice, and (iv) communicate reasonably promptly to the Parent any concerns conveyed to the executive officers of the Company by key employees with respect to their continued employment at the Company or its subsidiaries; (b) maintain the Acquired Assets in their present operating condition (ordinary wear obtain, renew and tear excepted); (c) observe and remain in compliance in all material respects with all statutes, laws, rules, regulations, orders, decrees and ordinances applicable to Seller or the operation of the Business (unless stayed pending appeal of such law or decision), subject to changes in laws or interpretations of such laws (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreement; (d) maintain and otherwise keep in full force and effect all Company Licenses, authorizations, licenses, certificates, permits, Slots, and Gate Interests from the appropriate federal, state and local Governmental Entities, including, without limitation, the FAA, DOT and all Governmental Entities, necessary to authorize the Company and each of its subsidiaries to lawfully engage in air transportation and to carry on commercial passenger service as currently conducted and as may from time to time be necessary to enable it lawfully to own, lease or operate aircraft and to perform the obligations herein undertaken by it, and observe and comply with the terms and conditions of any such authorizations, licenses, certificates and permits; (c) keep all owned and leased aircraft in such condition as may be necessary to enable the FAA Certificate of Airworthiness of such aircraft to be maintained in good standing; (d) conduct their business in such a manner that, on the Closing Date, the representations and warranties of the insurance currently maintained Company contained in this Agreement (as modified by Sellerthe Disclosure Letter) which are qualified as to materiality shall be true, unless replaced correct and complete and the representations and warranties (as modified by substantially similar policies the Disclosure Letter) not so qualified shall be true, correct and complete in all material respects as if such representations and warranties were made on and as of such date, provided that do not reduce representations and warranties (as modified by the amount Disclosure Letter) made as of coverage compared a specific date shall be required to those policies currently in effectbe so true and correct (subject to such qualifications) as of such date only; (e) not sell, mortgage, pledge, lease, or otherwise transfer, or dispose maintain its books of or distribute any of its assets used in connection with the Business or enter into any agreement with respect to the foregoing, other than in the ordinary course of Business account and records consistent with such Seller’s its past practicespractice in all material respects; (f) pay all liabilities and obligations as and when due, including all Taxes, other than such liabilities not amend its Articles of Incorporation or obligations Seller is contesting in good faith by appropriate proceedings and has set aside on its books adequate reserves with respect theretoBy-Laws; (g) not alter, modify declare or accelerate its existing collection levels pay any dividends on or make other distributions in respect of accounts receivables, or, other than in its ordinary course any of its Business and consistent with past practice, write-off as uncollectible any accounts or receivables, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, administrative or arbitration judgments, rulings, orders and the like that occur after the date of this Agreementtheir capital stock; (h) except with respect to Excluded Employeesnot split, not declare combine or increase the benefits or compensation payable or to become payable to reclassify any of Seller’s Employees its capital stock or issue or authorize or propose the issuance of any bonusother securities in respect of, profit sharing or other extraordinary compensation to any Employee of Sellerin lieu of, or enter into in substitution for, shares of its capital stock; (i) not redeem, repurchase or otherwise acquire any agreement with respect to shares of its capital stock other than intercompany acquisitions of capital stock; (j) not merge or consolidate with, or purchase substantially all of the foregoing for assets of, or otherwise acquire the business of, any such Employeeperson; (k) not sell, except transfer, lease or otherwise dispose of any assets other than in the ordinary course of business and consistent with past practices; (i) not make or enter into any agreement to make any capital expenditure on behalf of Sellers in excess of$50,000 individually or $200,000 in the aggregate, other than pursuant to existing contracts and other than any dispute with the Business Software Alliance; (j) not amend or terminate any contract or agreement required to be listed on Schedule 3.12(a) and, except in the ordinary course of Business on a basis consistent with such Seller’s past practices, not enter into any material contract or agreement with any other individual, entity or governmental authority, including, without limitation, any employment agreement not terminable at will by Sellers; (k) maintain its books, records and accounts, and maintain a system of accounting, as may be required or as may be necessary to permit the preparation of audited financial statements in accordance with GAAP and in compliance with the regulations of any governmental or regulatory authority having jurisdiction over it or any of its properties, other than as a result of changes in laws or interpretations of such laws after the date of this Agreement (including but not limited to statutes, ordinances, regulations, administrative proceedings, orders or any similar actions), judicial, arbitration, or administrative judgments, rulings, orders and the like that occur after the date of this Agreementpractice; (l) continue reasonably to protect all confidential information and trade secrets ofnot enter into any employment or severance agreements with any director, each Seller, in accordance with such Seller’s past practicesofficer or employee; (m) not incur issue any indebtedness capital stock or issue or become a party to any liabilities subscriptions, warrants, rights, options, convertible securities or other than in the ordinary course agreements or commitments of Business consistent with such Seller’s past practicesany character relating to its issued or unissued capital stock, or its other equity securities, if any, or grant any stock appreciation or similar rights; (n) not make any material change in any method of accounting or accounting practice or policy other than those required by GAAP; (o) not make any election with respect to Taxes, change any election, change an annual accounting periodcurrently or previously effective election relating to Taxes, adopt or change any accounting method, file any amended Tax Returnmethod relating to Taxes, enter into any closing agreementagreement relating to Taxes, settle or consent to any Tax claim or assessment relating to the Seller, surrender any right to claim a refund of Taxes, consent to waive the statute of limitations for any extension or waiver of the limitation period applicable to any Tax such claim or assessment relating to Sellerassessment, or take file any other similar action relating to the filing of any amended Tax Return or claim for refund for Taxes; (p) not adopt or enter into any new employee benefit plan or amend any existing benefit plan and not increase the payment compensation or benefits payable to any officers, directors or employees of the Company or its subsidiaries (except for increases required under employment agreements or collective bargaining agreements or any Tax, except as consistent with past practice, that would result in a Lien benefit plans existing on the Acquired Assetsdate hereof); orand (oq) be allowed not agree or commit to make cash distributions do any of the foregoing referred to its members and ownersin clauses (f) through (p) of this Section 4.1.