OR ACT OF, OR THE
MAKING BY TRANSFEREE OF ANY DECLARATION, NOTIFICATION, FILING OR REGISTRATION
WITH, ANY PERSON, EXCEPT INSOFAR AS SUCH CONSENT, AUTHORIZATION OR DECLARATION
OR FILING HAS BEEN MADE AND IS LISTED IN SCHEDULE 4.1(D) ("CONSENTS").
(E)
THERE IS NO ACTION PENDING OR, TO THE KNOWLEDGE OF THE SENIOR
OFFICERS OF TRANSFEREE, THREATENED WHICH QUESTIONS THE LEGALITY OR PROPRIETY OF
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR WHICH WOULD IMPAIR, IN ANY
MATERIAL RESPECT, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND
THERE HAS NOT BEEN, TO THE KNOWLEDGE OF THE SENIOR OFFICERS OF TRANSFEREE, ANY
CLAIM ASSERTED BY ANY PERSON THAT COULD LEAD TO SUCH AN ACTION.
ARTICLE 5
PRE-CLOSING COVENANTS
5.1
COOPERATION AND BEST EFFORTS.
EACH PARTY WILL
COOPERATE WITH THE OTHER AND USE ITS BEST EFFORTS TO (I) PROCURE ALL NECESSARY
AND APPROPRIATE CONSENTS AND APPROVALS, (II) COMPLETE AND FILE ALL NECESSARY AND
APPROPRIATE APPLICATIONS, NOTIFICATIONS, FILINGS AND CERTIFICATIONS, AND
(III) SATISFY ALL REQUIREMENTS PRESCRIBED BY LAW FOR, AND CONDITIONS SET FORTH
IN THIS AGREEMENT TO, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
5.2
CONDUCT OF BUSINESS OF THE BUICK FACILITY
PRIOR TO AND ON THE CLOSING DATE.
DOE RUN SHALL CONDUCT ITS OPERATIONS WITH
RESPECT TO THE BUICK FACILITY IN THE ORDINARY AND USUAL COURSE OF BUSINESS AND
MAINTAIN ITS USUAL RELATIONSHIPS WITH SUPPLIERS, DISTRIBUTORS, CUSTOMERS AND
OTHERS HAVING BUSINESS RELATIONSHIPS WITH IT.
WITHOUT THE PRIOR WRITTEN CONSENT
OF THE TRANSFEREE, DOE RUN SHALL NOT COMMIT OR OMIT TO DO ANY ACT THAT (I) WOULD
CAUSE A BREACH OF ANY AGREEMENT, COMMITMENT OR COVENANT OF DOE RUN CONTAINED IN
THIS AGREEMENT IN ANY MATERIAL RESPECT OR (II) WOULD CAUSE THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN ARTICLE 4 TO BECOME UNTRUE IN ANY MATERIAL RESPECT
OR (III) WOULD CAUSE A MATERIAL CHANGE IN OPERATIONS UNDER ANY GOVERNMENTAL
PERMIT ISSUED FOR THE BUICK FACILITY.
EXCEPT AS SHOWN IN SCHEDULE 5.2 (NEW AND
AMENDED CAPITAL OBLIGATIONS), DOE RUN SHALL NOT INCUR ANY NEW OR AMENDED
OBLIGATIONS FOR CAPITAL EXPENDITURES, THE TERMS OF PAYMENT OF WHICH WILL ARISE
AFTER THE CLOSING, IN AN AMOUNT IN EXCESS OF $100,000.00 FOR ANY INDIVIDUAL
ITEM, OR $500,000.00 IN THE AGGREGATE, WITHOUT THE PRIOR CONSENT OF THE
TRANSFEREE.
5.3
NOTIFICATION OF CHANGES.
(A)
EACH OF DOE RUN AND THE TRANSFEREE SHALL PROMPTLY NOTIFY THE OTHER
OF ANY EVENT THAT CAUSES ANY REPRESENTATION OR WARRANTY GIVEN BY EITHER OF THEM,
RESPECTIVELY, IN ARTICLE 4 TO BECOME UNTRUE IN ANY MATERIAL RESPECT.
(B)
DOE RUN SHALL HAVE THE RIGHT UNTIL THE CLOSING TO SUPPLEMENT OR
AMEND ANY OF THE EXHIBITS OR SCHEDULES DESCRIBED HEREIN WITH RESPECT TO ANY
MATTER ARISING OR DISCOVERED AFTER THE DATE OF THIS AGREEMENT THAT, IF EXISTING
OR KNOWN ON THE DATE OF THIS
18
AGREEMENT, WOULD HAVE BEEN REQUIRED TO BE SET FORTH OR DESCRIBED IN SUCH
EXHIBITS OR SCHEDULES, UNLESS THE ABSENCE OF THE SAME WOULD HAVE BEEN A
DEFAULT.
FOR PURPOSES OF THIS AGREEMENT, INCLUDING FOR PURPOSES OF DETERMINING
WHETHER THE CONDITIONS SET FORTH IN ARTICLE