AND BY APPROPRIATE PROCEEDINGS DILIGENTLY CONDUCTED;
40
(III)
CONTINUE TO CONDUCT ITS BUSINESS IN THE
ORDINARY COURSE CONSISTENT WITH PAST PRACTICE;
(IV)
KEEP ITS BOOKS OF ACCOUNT, FILES AND RECORDS
IN THE ORDINARY COURSE AND IN ACCORDANCE WITH EXISTING PRACTICE;
(V)
USE COMMERCIALLY REASONABLE EFFORTS IN LIGHT
OF THE TRANSACTIONS CONTEMPLATED HEREIN CONSISTENT WITH THE OPERATION OF THE
COMPANY'S BUSINESS IN THE ORDINARY COURSE AND CONSISTENT WITH PAST PRACTICE TO
PRESERVE INTACT ITS OPERATIONS, ORGANIZATION AND REPUTATION;
(VI)
PAY OR ACCRUE BY THE MEASUREMENT DATE FOR THE
CAPITAL EXPENDITURE PROJECTS LISTED ON SCHEDULE 7.1(B)(VI) HERETO AND MAKE
COMMERCIALLY REASONABLE EFFORTS TO COMPLETE SUCH PROJECTS; AND
(VII)
USE COMMERCIALLY REASONABLY EFFORTS TO CONTINUE
TO SPEND THE AMOUNTS UNDER THE VENDOR CONTRACTS AT RATES CONSISTENT WITH PAST
PRACTICE AND IN A MANNER THAT IS REASONABLY LIKELY TO AVOID ASSESSMENTS AGAINST
THE COMPANY OR ITS RETAINED SUBSIDIARIES DURING THE 12 MONTHS AFTER THE CLOSING.
(C)
NOTHING CONTAINED IN THIS AGREEMENT SHALL
GIVE TO LEVEL 3 OR BUYER, DIRECTLY OR INDIRECTLY, RIGHTS TO CONTROL OR DIRECT
THE OPERATIONS OF THE COMPANY OR THE RETAINED SUBSIDIARIES PRIOR TO THE CLOSING
DATE.
PRIOR TO THE CLOSING DATE, THE COMPANY AND THE RETAINED SUBSIDIARIES
SHALL EXERCISE, CONSISTENT WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT,
COMPLETE CONTROL AND SUPERVISION OF ITS AND ITS SUBSIDIARIES' OPERATIONS.
SECTION 7.2.
CONSENTS AND APPROVALS.
LEUCADIA AND THE SELLER SHALL, AND SHALL
CAUSE EACH OF THE COMPANY AND ITS SUBSIDIARIES TO (A) USE THEIR COMMERCIALLY
REASONABLE EFFORTS TO OBTAIN ALL CONSENTS, WAIVERS, AUTHORIZATIONS AND APPROVALS
OF ALL GOVERNMENTAL ENTITIES, AND OF ALL OTHER PERSONS, REQUIRED IN CONNECTION
WITH THE EXECUTION, DELIVERY AND PERFORMANCE BY THE SELLER AND LEUCADIA OF THIS
AGREEMENT, AND THE BUYER AND LEVEL 3 SHALL COOPERATE WITH THE SELLER AND
LEUCADIA IN OBTAINING SUCH CONSENTS AND (B) COOPERATE WITH THE BUYER AND LEVEL 3
IN PREPARING AND FILING ALL DOCUMENTS REQUIRED TO BE SUBMITTED BY THE BUYER OR
LEVEL 3 TO ANY GOVERNMENTAL ENTITY, IN CONNECTION WITH SUCH TRANSACTIONS AND IN
OBTAINING ANY GOVERNMENTAL CONSENTS, WAIVERS, AUTHORIZATIONS OR APPROVALS WHICH
MAY BE REQUIRED TO BE OBTAINED BY THE BUYER OR LEVEL 3 IN CONNECTION WITH SUCH
TRANSACTIONS (WHICH ASSISTANCE AND COOPERATION SHALL INCLUDE, WITHOUT
LIMITATION, TIMELY FURNISHING TO THE BUYER AND LEVEL 3 ALL INFORMATION
CONCERNING LEUCADIA, THE SELLER AND THE COMPANY AND ITS SUBSIDIARIES THAT
COUNSEL TO THE BUYER DETERMINES IS REQUIRED TO BE INCLUDED IN SUCH DOCUMENTS).
SECTION 7.3.
ACCESS TO PROPERTIES AND RECORDS.
LEUCADIA AND THE SELLER SHALL
CAUSE EACH OF THE COMPANY AND THE RETAINED SUBSIDIARIES TO AFFORD TO THE BUYER
AND LEVEL 3, AND TO THE ACCOUNTANTS, COUNSEL AND REPRESENTATIVES OF THE BUYER
AND LEVEL 3, REASONABLE ACCESS DURING NORMAL BUSINESS HOURS THROUGHOUT THE
PERIOD PRIOR TO THE CLOSING DATE (OR THE EARLIER TERMINATION OF THIS AGREEMENT
PURSUANT TO SECTION 12) TO ALL PROPERTIES, BOOKS, CONTRACTS, COMMITMENTS AND
FILES AND RECORDS (BUT LIMITED WITH RESPECT TO TAX RETURNS AND CORRESPONDENCE
WITH ACCOUNTANTS TO THESE PORTIONS OF TAX RETURNS AND CORRESPONDENCE WITH
ACCOUNTANTS THAT