TERMINATION,
AMENDMENT OR ACCELERATION, WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON BUYER.
5.5
NO BROKERS.
EXCEPT FOR FEES PAYABLE TO
THOMAS WEISEL PARTNERS SOLELY BY BUYER, NEITHER BUYER NOR ANY AFFILIATE OF BUYER
IS OBLIGATED FOR THE PAYMENT OF ANY FEES OR EXPENSES OF ANY INVESTMENT BANKER,
BROKER, FINDER OR SIMILAR PARTY IN CONNECTION WITH THE ORIGIN, NEGOTIATION OR
EXECUTION OF THIS AGREEMENT OR IN CONNECTION WITH THE ASSET PURCHASE OR ANY
OTHER TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
40
ARTICLE 6
SELLER COVENANTS
During the time period from the Agreement Date until the earlier to occur of
(a) the Closing or (b) the termination of this Agreement in accordance with the
provisions of Article 10, Seller covenants and agrees with Buyer as follows:
6.1
ADVICE OF CHANGES.
SELLER SHALL PROMPTLY
ADVISE BUYER IN WRITING OF (A) ANY EVENT OCCURRING SUBSEQUENT TO THE AGREEMENT
DATE THAT WOULD RENDER ANY REPRESENTATION OR WARRANTY OF SELLER CONTAINED IN
ARTICLE 4 UNTRUE OR INACCURATE SUCH THAT THE CONDITION SET FORTH IN SECTION 9.1
WOULD NOT BE SATISFIED, (B) ANY BREACH OF ANY COVENANT OR OBLIGATION OF SELLER
PURSUANT TO THIS AGREEMENT OR ANY SELLER ANCILLARY AGREEMENT SUCH THAT THE
CONDITION SET FORTH IN SECTION 9.2 WOULD NOT BE SATISFIED OR (C) ANY MATERIAL
ADVERSE CHANGE IN SELLER.
6.2
MAINTENANCE OF BUSINESS.
SELLER SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO CARRY ON AND PRESERVE THE BUSINESS AND ITS
RELATIONSHIPS WITH CUSTOMERS, ADVERTISERS, SUPPLIERS, EMPLOYEES AND OTHERS WITH
WHOM SELLER HAS CONTRACTUAL OR BUSINESS RELATIONS IN SUBSTANTIALLY THE SAME
MANNER AS IT HAS PRIOR TO THE AGREEMENT DATE CONSISTENT WITH ITS PAST
PRACTICES.
IF SELLER BECOMES AWARE OF A MATERIAL DETERIORATION IN THE
RELATIONSHIP WITH ANY KEY CUSTOMER, KEY ADVERTISER, KEY SUPPLIER OR KEY
EMPLOYEE, IT SHALL PROMPTLY BRING SUCH INFORMATION TO BUYER'S ATTENTION IN
WRITING AND, IF REQUESTED BY BUYER, SHALL EXERT REASONABLE COMMERCIAL EFFORTS TO
PROMPTLY RESTORE THE RELATIONSHIP.
AT BUYER'S REQUEST SUCH COOPERATION MAY
INCLUDE JOINT CUSTOMER CALLS AND COOPERATION IN SETTING SALES, MARKETING AND
MANUFACTURING STRATEGIES.
6.3
CONDUCT OF BUSINESS.
SELLER SHALL CONTINUE
TO CONDUCT BUSINESS AND MAINTAIN ITS BUSINESS RELATIONSHIPS IN THE ORDINARY AND
USUAL COURSE CONSISTENT WITH ITS PAST PRACTICES AND, EXCEPT AS SET FORTH IN
SCHEDULE 6.3 OF THE SELLER DISCLOSURE LETTER, SELLER SHALL NOT, WITHOUT BUYER'S
PRIOR WRITTEN CONSENT, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED:
(A)
EXCEPT FOR ANY ADDITIONAL INDEBTEDNESS,
INCUR ANY INDEBTEDNESS FOR BORROWED MONEY OR GUARANTEE ANY SUCH INDEBTEDNESS OF
ANOTHER PERSON OR ISSUE OR SELL ANY DEBT SECURITIES OR GUARANTEE ANY DEBT
SECURITIES OF ANOTHER PERSON;
(B)
(I) LEND ANY MONEY, OTHER THAN REASONABLE
AND NORMAL ADVANCES TO EMPLOYEES FOR BONA FIDE EXPENSES THAT ARE INCURRED IN THE
ORDINARY COURSE OF BUSINESS CONSISTENT WITH ITS PAST PRACTICES, (II) MAKE ANY
INVESTMENTS IN OR CAPITAL CONTRIBUTIONS TO, ANY PERSON, (III) FORGIVE OR
DISCHARGE IN WHOLE OR IN PART ANY OUTSTANDING LOANS OR ADVANCES, OR (IV) PREPAY
ANY INDEBTEDNESS;
(C)
ENTER INTO ANY SELLER MATERIAL CONTRACT (OR
ANY AGREEMENT WHICH WOULD BE