Common use of Specific Actions Clause in Contracts

Specific Actions. Without limiting the generality of the foregoing, except as expressly provided or permitted herein or undertaken according to the process described in the Company Growth Plan, during the Pre-Closing Period, Seller covenants and agrees that it shall not cause or permit the Company to, directly or indirectly, do any of the following without the prior written consent of Buyer: (i) amend the Company Organizational Documents or the terms of the Units; (ii) issue, deliver, authorize, create, sell, grant, pledge or otherwise dispose of or encumber, propose or take any action in furtherance of the foregoing, any Equity Interests of the Company or any securities convertible into or exchangeable for, or any rights, conversion privileges, warrants, options or other rights of any kind to acquire or receive payment in respect of the value of, Equity Interests of the Company; (iii) declare, set aside or pay any dividend or other distribution in respect of Equity Interests of the Company (whether by merger, consolidation or otherwise) or redeem, purchase or otherwise acquire any outstanding Equity Interests of the Company; provided, that the foregoing shall not restrict the Company from declaring or paying any cash dividend or distribution that is paid in full prior to the Closing Date; (iv) except as described in clause (ix) below, sell, lease, license, pledge, transfer or otherwise dispose of or encumber any material properties or material assets of the Company or subject any of such assets or properties to any Liens (other than Permitted Liens), other than in the Ordinary Course of Business or properties or assets with a fair market value of less than $500,000; (v) except as set forth on Section 4.1(b)(v) of the Seller Disclosure Schedule or as otherwise described in the Company Growth Plan, (A) amend, modify, supplement in any material respect, enter into, become subject to, grant any waiver of any material term under, give any material consent with respect to, or terminate any Material Contract other than other than (i) bidding for, entering into, renewing or replacing Contracts with customers or vendors in the Ordinary Course of Business that (A) provide for aggregate annual payments by or to the Company of less than $1,000,000 or (B) have a term of less than twenty-four (24) months and are capable of being terminated on sixty (60) days’ notice or less and (ii) terminations of Contracts as a result of the expiration of the term of such Contracts or (B) enter into any Contract that would require a payment to or give rise to any rights to such other party or parties in connection with the Contemplated Transactions to the extent such payment would not constitute an Unpaid Transaction Expense. (vi) create, incur, assume, suffer to exist or otherwise be liable with respect to any Indebtedness, other than the incurrence of trade indebtedness in the Ordinary Course of Business; (vii) make any loans, advances or capital contributions to, or investment in, any other Person; (viii) sell, assign, transfer, lease, license or allow to lapse any rights in the Material Intellectual Property; (ix) except for aircraft purchases and improvements or reconfigurations as set forth in the Company Growth Plan or expenditures for emergency or other repairs in connection with restoring an aircraft into service, make any capital expenditures with respect to property, plant or equipment of the Company in excess of $250,000 per occurrence; (x) make any changes in accounting methods, principles or practices, except insofar as may be required by a change in GAAP as agreed to by its independent public accountants; (xi) redeem, purchase or acquire or offer to acquire any, shares of common stock or other securities of any third party; (xii) enter into, modify or amend (except termination in accordance with Section 4.13), any transaction or Contract with, any Company Affiliated Person; (xiii) make or change any income Tax or other material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any amendment to an income Tax Return or other material Tax Return, settle any claim or assessment in respect of Taxes or surrender any refund in respect of Taxes or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, enter into a closing agreement in respect of Taxes, request a ruling related to Taxes, fail to duly and timely file all income Tax and other material Tax Returns and other documents required to be filed with any Taxing Authority in accordance with past practice (taking into account any extension of time within which to file such Tax Return) or incur any liability for Taxes other than in the Ordinary Course of Business; (xiv) enter into any new contract or agreement that requires payments by or to the Company in excess of $250,000 per year other than in the Ordinary Course of Business; (xv) commence, pay, discharge, settle or satisfy any Proceedings, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $500,000, other than the payment, discharge or satisfaction in the Ordinary Course of Business of liabilities reflected or reserved against in the Company Financial Statements or incurred in the Ordinary Course of Business, or waive any material benefits of any confidentiality, standstill or similar agreements to which the Company is a party; (xvi) fail to continue, in respect of all Aircraft, all maintenance programs consistent with past practice (either with current service providers or other reputable service providers), including using commercially reasonable efforts to keep all such Aircraft in such condition as may be necessary to enable the Company as of the date of this Agreement, other than changes in the Ordinary Course of Business; (xvii) fail to maintain insurance at levels comparable to current levels or otherwise in a manner inconsistent with past practice; (xviii) acquire (by merger, exchange, consolidation, acquisition of stock or assets or otherwise) any Person or division or material assets thereof; (xix) except as specifically described in Section 4.1(b)(xix) of the Seller Disclosure Schedule or as required by applicable Law, (A) grant or provide any change-in-control, retention, equity or equity-based, severance or termination compensation or benefits to any current or former service provider, (B) increase, or accelerate the vesting, payment or funding of, compensation or benefits payable to any current or former service provider, or establish, adopt, amend, renew, announce, waive any rights with respect to, modify or terminate (or commit to do any of the preceding in respect of) any Company Benefit Plan, (C) hire or engage any employee or independent contractor with base compensation in excess of $150,000 per year, or (D) adopt, enter into, amend, modify, renew or terminate any collective bargaining agreement or any other agreement, arrangement or plan with a union, works council or other employee representative body; (xx) take any action that would cause the Company to fail to be, or fail to be owned and controlled by, a “Citizen of the United States” as defined in 49 U.S.C.§ 40102(a)(15) or an “air carrier” as defined in 49 U.S.C. § 40102(a)(2)(15), or fail to hold an operating certificate issued pursuant to 49 U.S.C. §41101-41102; (xxi) purchase, sell or enter into an agreement to purchase or sell any interest in real property; (xxii) amend or waive any material right under any Real Property Lease, enter into any lease of real property or terminate any Real Property Lease (other than any termination in accordance with the terms of such Real Property Lease); (xxiii) the lease, purchase or financing of any aircraft or engines other than the purchase or lease of up to seven (7) Boeing 737-800 aircraft on terms substantially consistent with the letters of intent dated October 6, 2017, October 11, 2017 and November 24, 2017 and Made Available to Buyer; (xxiv) authorize any of or commit or agree, in writing or otherwise, to take any of, the foregoing actions.

Specific Actions. Without limiting the generality of the foregoingSection 5.1(a), except as expressly provided or permitted herein or undertaken according to the process described in the Company Growth Plan, during the Pre-Closing Period, Seller covenants and each Covenanting Party agrees that it shall not, and it shall not cause cause, authorize or permit the Company any of Parent’s Affiliates or any Seller Group Company, as applicable, to, directly except to the extent expressly permitted by this Agreement or indirectlyotherwise consented to in writing signed by the other (such consent not to be unreasonably withheld, do any of the following without the prior written consent of Buyer:delayed or conditioned): (i) amend the Company Organizational Documents adopt or the terms of the Unitspropose any change to any such entity’s organizational documents; (ii) issue, deliver, authorize, create, sell, grant, pledge merge or otherwise dispose consolidate with any other Person or acquire a material amount of equity or encumber, propose or take any action in furtherance of the foregoing, any Equity Interests of the Company or any securities convertible into or exchangeable for, or any rights, conversion privileges, warrants, options or other rights of any kind to acquire or receive payment in respect of the value of, Equity Interests of the Company; (iii) declare, set aside or pay any dividend or other distribution in respect of Equity Interests of the Company (whether by merger, consolidation or otherwise) or redeem, purchase or otherwise acquire any outstanding Equity Interests of the Company; provided, that the foregoing shall not restrict the Company from declaring or paying any cash dividend or distribution that is paid in full prior to the Closing Date; (iv) except as described in clause (ix) below, sell, lease, license, pledge, transfer or otherwise dispose of or encumber any material properties or material assets of the Company or subject any of such assets or properties to any Liens (other than Permitted Liens), other than in the Ordinary Course of Business Business) assets of any other Person or properties effect any business combination, recapitalization or assets with a fair market value of less than $500,000similar transaction; (viii) except as set forth on Section 4.1(b)(v) of the Seller Disclosure Schedule or as otherwise described in the Company Growth Plan, (A) amend, modify, supplement in any material respect, enter into, become subject to, grant any waiver of any material term under, give any material consent with respect to, or terminate any Material Contract other than other than (i) bidding for, entering into, renewing or replacing Contracts with customers or vendors in the Ordinary Course of Business that Business, sell, lease or dispose of or make any contract for the sale, lease or disposition of, or make subject to a security interest or any other Encumbrance, any such entity’s properties or assets; (iv) (A) provide for aggregate annual payments by increase the compensation payable or to become payable (including bonus grants and retention payments) or increase or accelerate the Company vesting of less than $1,000,000 any benefits provided, or pay or award any payment or benefit not required by a Contract as existing on the date hereof or by applicable Law, to their current and former directors, officers or employees or other service providers, (B) have a term grant any severance or termination pay or retention payments or benefits to, or enter into or amend or terminate any employment, severance, retention, change in control, consulting or termination Contract with, any current or former director, officer or other employee or other service providers, (C) establish, adopt, enter into or amend or terminate any collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, Contract, trust, fund or policy for the benefit of less than twentyany current or former director, officer or employee or other service providers, (D) pay or make any accrual or other arrangement for, or take any action to fund or secure payment of, any severance pension, indemnification, retirement allowance, or other benefit, (E) hire, elect or appoint any officer or senior director-four (24) months and are capable of being terminated on sixty (60) days’ notice or less and (ii) terminations of Contracts as a result of the expiration of the term of such Contracts level employee, or (BF) enter into terminate the employment, change the title, office or position, or materially reduce the responsibilities of any Contract that would require a payment to officer or give rise to senior director-level employee, except for any rights to such other party or parties actions as described in connection with the Contemplated Transactions to the extent such payment would not constitute an Unpaid Transaction Expense. (viA) create, incur, assume, suffer to exist or otherwise be liable with respect to any Indebtedness, other than the incurrence through (F) of trade indebtedness this Section 5.1(b)(iv) as are taken in the Ordinary Course of Business; (v) incur or guarantee any Indebtedness, other than in the Ordinary Course of Business, or issue any commercial paper; (vi) enter into any leases of real property; (vii) enter into any Related-Party Contract (other than with respect to the transactions contemplated by the Stock Sale and Debt Repayment); (viii) amend or prematurely terminate, waive any material right or remedy under, or commit a breach of, any Related-Party Contract (other than with respect to the transactions contemplated by the Debt Repayment); (ix) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any securities or other ownership interests (other than Parent with respect to the transactions contemplated by the Stock Sale); (x) change any of its methods of accounting or accounting practices in any material respect; (xi) except in the Ordinary Course of Business, make, amend or revoke any material election with respect to Taxes, amend any Tax Return involving a material amount of additional Taxes, change any accounting method relating to material Taxes, consent to any waiver or extension of any statute of limitations with respect to Taxes or Tax Returns, or settle or compromise any material Tax Liability; (xii) willfully (A) take any action, (B) fail to take any action or (C) enter into any agreement or understanding, in each case, with the actual knowledge that such action, failure to take action or entry into such agreement or understanding would cause a Seller Group Party to be in breach of a specific representation or representations made in this Agreement; (xiii) except in the Ordinary Course of Business, make any loans, advances or capital contributions to, or investment investments in, any other Person; (viiixiv) selldeclare, assignset aside or pay any dividend on, transferor make any other distribution in respect of, lease, license or allow to lapse any rights in the Material Intellectual Property; (ix) except for aircraft purchases and improvements or reconfigurations as set forth in the Company Growth Plan or expenditures for emergency its equity securities or other repairs in connection with restoring an aircraft into service, make any capital expenditures with respect to property, plant or equipment of the Company in excess of $250,000 per occurrence; (x) make any changes in accounting methods, principles or practices, except insofar as may be required by a change in GAAP as agreed to by its independent public accountants; (xi) redeem, purchase or acquire or offer to acquire any, shares of common stock or other securities of any third party; (xii) enter into, modify or amend (except termination in accordance with Section 4.13), any transaction or Contract with, any Company Affiliated Person; (xiii) make or change any income Tax or other material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any amendment to an income Tax Return or other material Tax Return, settle any claim or assessment in respect of Taxes or surrender any refund in respect of Taxes or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, enter into a closing agreement in respect of Taxes, request a ruling related to Taxes, fail to duly and timely file all income Tax and other material Tax Returns and other documents required to be filed with any Taxing Authority in accordance with past practice (taking into account any extension of time within which to file such Tax Return) or incur any liability for Taxes other than in the Ordinary Course of Business; (xiv) enter into any new contract or agreement that requires payments by or to the Company in excess of $250,000 per year other than in the Ordinary Course of Businessownership interests; (xv) commence, pay, discharge, settle adopt a plan of complete or satisfy any Proceedings, liabilities partial liquidation or obligations (absolute, accrued, asserted dissolution or unasserted, contingent resolutions providing for or otherwise) in excess of $500,000, other than the payment, discharge authorizing such a liquidation or satisfaction in the Ordinary Course of Business of liabilities reflected or reserved against in the Company Financial Statements or incurred in the Ordinary Course of Business, or waive any material benefits of any confidentiality, standstill or similar agreements to which the Company is a party;dissolution; or (xvi) fail to continue, in respect of all Aircraft, all maintenance programs consistent with past practice (either with current service providers or other reputable service providers), including using commercially reasonable efforts to keep all such Aircraft in such condition as may be necessary to enable the Company as of the date of this Agreement, other than changes in the Ordinary Course of Business; (xvii) fail to maintain insurance at levels comparable to current levels or otherwise in a manner inconsistent with past practice; (xviii) acquire (by merger, exchange, consolidation, acquisition of stock or assets or otherwise) any Person or division or material assets thereof; (xix) except as specifically described in Section 4.1(b)(xix) of the Seller Disclosure Schedule or as required by applicable Law, (A) grant or provide any change-in-control, retention, equity or equity-based, severance or termination compensation or benefits to any current or former service provider, (B) increase, or accelerate the vesting, payment or funding of, compensation or benefits payable to any current or former service provider, or establish, adopt, amend, renew, announce, waive any rights with respect to, modify or terminate (agree or commit to do any of the preceding in respect of) any Company Benefit Plan, (C) hire or engage any employee or independent contractor with base compensation in excess of $150,000 per year, or (D) adopt, enter into, amend, modify, renew or terminate any collective bargaining agreement or any other agreement, arrangement or plan with a union, works council or other employee representative body; (xx) take any action that would cause the Company to fail to be, or fail to be owned and controlled by, a “Citizen of the United States” as defined in 49 U.S.C.§ 40102(a)(15) or an “air carrier” as defined in 49 U.S.C. § 40102(a)(2)(15), or fail to hold an operating certificate issued pursuant to 49 U.S.C. §41101-41102; (xxi) purchase, sell or enter into an agreement to purchase or sell any interest in real property; (xxii) amend or waive any material right under any Real Property Lease, enter into any lease of real property or terminate any Real Property Lease (other than any termination in accordance with the terms of such Real Property Lease); (xxiii) the lease, purchase or financing of any aircraft or engines other than the purchase or lease of up to seven (7) Boeing 737-800 aircraft on terms substantially consistent with the letters of intent dated October 6, 2017, October 11, 2017 and November 24, 2017 and Made Available to Buyer; (xxiv) authorize any of or commit or agree, in writing or otherwise, to take any of, the foregoing actionsforegoing.