FACILITY AND ANY INTERVIEW BY THE PURCHASER OF SUCH INVOLVED PERSONNEL SHALL
REQUIRE THE PRIOR WRITTEN APPROVAL OF THE SELLER.
NEITHER THE REPRESENTATIONS
AND WARRANTIES OF SELLER, NOR THE INDEMNIFICATION OBLIGATIONS OF SELLER, SHALL
BE AFFECTED, QUALIFIED, MODIFIED OR DEEMED WAIVED BY REASON OF THE PURCHASER'S
EXERCISE OR FAILURE TO EXERCISE ITS RIGHTS UNDER THIS SECTION.
5.02
PENDING CLOSING.
PENDING THE CLOSING, AND UNLESS OTHERWISE
CONSENTED TO BY THE PURCHASER IN WRITING, THE SELLER SHALL:
(A)
CONDUCT AND CARRY OUT OPERATIONS AT THE FACILITY CONSISTENT WITH
GOOD UTILITY PRACTICES AND, IN ALL EVENTS, MAINTAIN THE PURCHASED ASSETS IN THE
SAME CONDITION IN ALL MATERIAL RESPECTS AS EXISTED ON JULY 31, 2006;
(b)
not sell, lease, mortgage, pledge or otherwise dispose of any of
the Purchased Assets or other material properties or assets of or in connection
with the Facility, except for tangible personal property purchased, sold or
otherwise disposed of in the ordinary course and the disposal of which does not
materially impair the value or the utility of the Purchased Assets;
18
(C)
EXCEPT AS SET FORTH ON SCHEDULE 5.02(C), NOT ENTER INTO, OR BECOME
OBLIGATED UNDER, ANY LEASE, CONTRACT, AGREEMENT OR COMMITMENT WITH RESPECT TO
THE FACILITY, PROPERTIES OR INVENTORY THAT CANNOT BE TERMINATED BY SELLER
WITHOUT PENALTY AT OR BEFORE CLOSING;
(D)
NOT MATERIALLY CHANGE, AMEND, OR OTHERWISE MODIFY OR TERMINATE ANY
PURCHASED CONTRACT;
(E)
MAINTAIN IN FULL FORCE AND EFFECT WITH RESPECT TO THE FACILITY,
PROPERTIES AND INVENTORY, POLICIES OF INSURANCE OF THE SAME TYPE, CHARACTER AND
COVERAGE AS THE POLICIES CURRENTLY CARRIED AND DESCRIBED IN SCHEDULE 7.07;
(F)
IF A SPARE PART SET FORTH ON SCHEDULE IA AND WORTH MORE THAN
$50,000 IS USED OR REMOVED FROM THE INVENTORY OF SPARE PARTS, REPLACE SUCH SPARE
PART WITH ITS EQUIVALENT BEFORE CLOSING;
(G)
USE INVENTORY AND SPARE PARTS COMPRISING PART OF THE PURCHASED
ASSETS ONLY IN CONNECTION WITH THE FACILITY, IN THE ORDINARY COURSE OF BUSINESS,
AND IN ACCORDANCE WITH GOOD UTILITY PRACTICE;
(H)
NOT ENTER INTO ANY LABOR OR COLLECTIVE BARGAINING AGREEMENT WITH
EMPLOYEES AT THE FACILITY;
(I)
NOT ENTER INTO, MODIFY, OR RENEW ANY CONTRACT WITH RESPECT TO THE
SALE OF ELECTRIC POWER OR ANCILLARY SERVICES FROM THE FACILITY THAT WILL CALL
FOR THE DELIVERY OF ELECTRIC POWER OR ANCILLARY SERVICES AFTER THE CLOSING; OR
(J)
NOT AGREE TO DO ANY OF THE ITEMS PROHIBITED BY SECTION 5.02(B),
(C), (D), (E) (F), (G), (H), OR (I).
5.03
CONSENTS.
PENDING THE CLOSING DATE, THE PARTIES SHALL PROCEED WITH
ALL REASONABLE DILIGENCE AND USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN THE
WRITTEN CONSENTS, AUTHORIZATIONS OR APPROVALS REQUIRED FOR THE CONSUMMATION OF
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (INCLUDING THE ASSIGNMENT AND
ASSUMPTION OF THE PURCHASED CONTRACTS); PROVIDED, HOWEVER, NEITHER PARTY SHALL
HAVE ANY OBLIGATION TO PAY ANY THIRD PERSON A FEE TO OBTAIN ANY SUCH CONSENT,
AUTHORIZATION OR APPROVAL NOT ALREADY PROVIDED FOR BY THE APPLICABLE AGREEMENT
OR LAW.
5.04
ENVIRONMENTAL ASSESSMENTS.
PURCHASER SHALL HAVE THE RIGHT TO
OBTAIN, AT PURCHASER'S EXPENSE AND FROM ENVIRONMENTAL CONSULTANTS SELECTED