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

Conduct of the Business Pending Closing. Subject to any obligations as a debtor or debtor-in-possession under the Bankruptcy Code, from the date hereof until the Closing Date, Sellers 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) 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 aggregate of greater than $100,000; (c) Sellers shall not sell, 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 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 used 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 their commercially reasonable efforts to preserve their relationships with third parties and keep available the services currently provided to Sellers (excluding the impact of Sellers' rejection or potential rejection of any contracts or Sellers' good faith business judgment to terminate any contract with any vendor); (f) Sellers shall not obtain any rulings or make any elections with respect to Taxes, or enter into any agreements with any Taxing Authority, to the extent any such elections or agreements have or could reasonably be expected to have any affect on the Transferred Assets after the Closing; (g) Sellers shall not establish or increase the benefits under, or promise to establish, modify or 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 plans and agreements consistent with past practice, or establish, adopt or enter into any collective bargaining agreement, service agreement, employment contract or related agreement (written or oral) with any Employee, or modify or amend any agreements contained in the Disclosure Schedule, Section 5.15; and (h) Sellers shall not agree or commit to do any of the foregoing.

Conduct of the Business Pending Closing. a. Subject to any obligations as a debtor or debtor-in-possession under the Bankruptcy Code, from Seller shall cause the date hereof until the Closing Date, Sellers shall Transferred Subsidiaries to use all commercially reasonable efforts to conduct the Business in the ordinary course of business. Seller shall cause the Transferred Subsidiaries to use all commercially reasonable efforts to preserve intact their business organizations and relationships with third parties and to keep available the services of their present officers and key employees, subject to the terms of this Agreement. Seller shall also cause the Transferred Subsidiaries to maintain their assets in a state of repair and condition that complies with all Legal Requirements and is consistent with the ordinary course of business. Except as otherwise contemplated under this Agreement or as required by applicable Legal RequirementsAgreement, from the date hereof until the Closing Date, without the prior written consent of BuyersBuyer: (ai) Sellers Seller shall cause the Transferred Subsidiaries not to adopt or propose any change in its Organizational Documents; (ii) Seller shall cause the 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; (iii) Seller shall cause the Transferred Subsidiaries not to merge or consolidate with any other Person or acquire a material amount of assets of any other Person; (biv) Sellers Seller 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 and shall cause the Closing in the aggregate of greater than $100,000; (c) Sellers shall Transferred Subsidiaries not sell, to lease, license, or otherwise surrender, relinquish, encumber, or dispose of any assets of the Transferred Assets Subsidiaries other than dispositions of current assets (as defined under GAAP) or used or obsolete equipment in the ordinary course 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 used 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; (dv) Sellers Seller shall use its Best Efforts to cause the Transferred Subsidiaries not to change any method of accounting or accounting practice used by themit, except for any change required by GAAP; (evi) Sellers Seller shall not and shall use their commercially reasonable efforts its Best Efforts to preserve their relationships with third parties and keep available the services currently provided to Sellers (excluding the impact of Sellers' rejection or potential rejection of any contracts or Sellers' good faith business judgment to terminate any contract with any vendor); (f) Sellers shall not obtain any rulings or make any elections with respect to Taxes, or enter into any agreements with any Taxing Authority, to the extent any such elections or agreements have or could reasonably be expected to have any affect on cause the Transferred Assets after the Closing; (g) Sellers shall Subsidiaries not to establish or increase the benefits under, or promise to establish, modify or increase the benefits under, any employee benefit plan (as defined in Section 3(3) of ERISA) in which Employees participate Employee Benefit Plan or otherwise increase the compensation payable to any Facility Employees, except in accordance with existing plans and agreements consistent with past practice, or establish, adopt or enter into any collective bargaining agreement, service agreement, employment contract or related agreement (written or oral) with any Facility Employee, or modify or amend any agreements contained in the Disclosure Schedule, Section 5.155.16(c)(1); (vii) 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 Taxes, or enter into any agreements with any Taxing Authority; and (hix) Sellers 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 extent necessary to comply with the requirements of applicable Legal Requirements, (i) take, agree, or commit to take, any action that would make any 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 the Closing Date, or (iii) take, agree, or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions set forth in Section 9 not being satisfied.

Conduct of the Business Pending Closing. (a) Subject to any obligations as a debtor or debtor-in-possession under the Bankruptcy Code, from the date hereof until the Closing Date, Sellers 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 BuyersBuyer: (ai) Sellers Seller shall cause each Transferred MissChem Subsidiary not to adopt or propose any change in its Organizational Documents; (ii) Seller shall cause each Transferred MissChem Subsidiary 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; (iii) Seller shall cause each Transferred MissChem Subsidiary not to merge or consolidate with any other Person or acquire a material amount of assets of any other Person; (biv) Sellers Seller shall cause each Transferred MissChem Subsidiary 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 aggregate of greater than $100,000; (c) Sellers shall not sell, to 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 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 used 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 acquire any agreement or letter of intent for the sale, lease, transfer, deposit in any "water bank" or other disposition of any Water Rightsassets; (dv) Sellers Seller shall cause each Transferred MissChem Subsidiary not to change any method of accounting or accounting practice used by themit, except for any change required by GAAP; (evi) Sellers Seller shall use their commercially reasonable efforts cause the Transferred MissChem Subsidiaries not to preserve their relationships with third parties and keep available the services currently provided to Sellers (excluding the impact of Sellers' rejection or potential rejection of any contracts or Sellers' good faith business judgment to terminate any contract with any vendor); (f) Sellers shall not obtain any rulings or make any elections with respect to Taxes, or enter into any agreements with any Taxing Authority, to the extent any such elections or agreements have or could reasonably be expected to have any affect on the Transferred Assets after the Closing; (gvii) Sellers Seller shall not establish or increase cause the benefits under, or promise Transferred MissChem Subsidiaries to establish, modify or increase preserve intact their relationships with third parties and keep available 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 services currently provided to any Employees, except in accordance with existing plans and agreements consistent with past practice, or establish, adopt or enter into any collective bargaining agreement, service agreement, employment contract or related agreement (written or oral) with any Employee, or modify or amend any agreements contained in the Disclosure Schedule, Section 5.15them; and (hviii) Sellers Seller shall not and shall cause the Transferred MissChem 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 MissChem Subsidiaries not to, except to the extent necessary to comply with the requirements of applicable Legal Requirements, (i) take, agree, or commit to take, any action that would make any 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 at, or as of any time prior to, the Closing Date, or (iii) take, agree, or commit to take, any action that would result in, or is reasonably likely to result in, any of the conditions set forth in Article IX not being satisfied.

Conduct of the Business Pending Closing. Subject Each Seller --------------------------------------- covenants and agrees that, prior to any obligations the earlier of the Closing or termination of this Agreement, except as a debtor (x) set forth in the Disclosure Schedule, (y) otherwise agreed to by Purchaser, or debtor-in-possession under (z) otherwise required by the Bankruptcy Code, Court or resulting from the date hereof until Bankruptcy Proceedings: (i) such Seller will operate the Closing Date, Sellers shall use commercially reasonable efforts to conduct the Business Assets in the ordinary course of its business. Except , consistent with past practice 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) Sellers shall not acquire a material amount of assets of any other Persondebtor-in-possession; (bii) Sellers shall such Seller will not enter into encumber the Assets with any contract or agreement which will be an Assumed Contract with a term greater than one year or providing Liens except for payments by Buyers after the Closing in the aggregate of greater than $100,000; (c) Sellers shall not sell, 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 Liens incurred in the ordinary course of business; provided such used its business or obsolete equipment is replaced with reasonable items of replacement equipment prior to the closing to the extent that such used Permitted Liens or obsolete equipment is necessary for the conduct Liens in favor of the Business by Sellers as currently conducted; Pre-Petition Lenders or the DIP Lenders (and provided further that Sellers may continue negotiating with any such Liens in favor of the New Mexico State Engineer's Office regarding title to the Water Rights relating to the Pecos River, but Pre-Petition Lenders or DIP Lenders shall not enter into any agreement or letter of intent for survive 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 their commercially reasonable efforts to preserve their relationships with third parties and keep available the services currently provided to Sellers (excluding the impact of Sellers' rejection or potential rejection of any contracts or Sellers' good faith business judgment to terminate any contract with any vendorClosing); (fiii) Sellers such Seller will not amend, in any material respect, any Revenue Leases or Ground Leases, except for amendments in the ordinary course of its business, and, without limiting the foregoing, the extension or renewal of any Revenue Leases or Ground Leases shall not obtain be deemed to be an amendment for purposes of this Section 7.01, provided, that (x) such Seller shall not extend -------- or renew any rulings Revenue Lease at a rental rate that is less than the present rental rate thereunder, without the consent of Purchaser which consent shall not be unreasonably withheld or make delayed, and (y) such Seller shall not extend or renew any elections with respect to TaxesGround 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 enter into delayed; (iv) such Seller shall notify Purchaser of any agreements with any Taxing Authoritypending or threatened governmental investigations or hearings, to the extent any within such elections or agreements have or could reasonably Seller's Knowledge, that would be expected to have any materially adversely affect on the Transferred Assets after the Closing; (g) Sellers shall not establish or increase the benefits under, or promise to establish, modify or increase the benefits under, any employee benefit plan (taken 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 plans and agreements consistent with past practice, or establish, adopt or enter into any collective bargaining agreement, service agreement, employment contract or related agreement (written or oral) with any Employee, or modify or amend any agreements contained in the Disclosure Schedule, Section 5.15a whole; and (hv) Sellers shall not agree or commit to do any such Seller will comply with all Applicable Laws in all material respects, the compliance with which is required for consummation of the foregoingtransactions contemplated by this Agreement.