CLAIM, ACTION, ARBITRATION OR OTHER
ADMINISTRATIVE OR JUDICIAL PROCEEDING OTHER THAN (I) FOR THE ROUTINE COLLECTION
OF BILLS, (II) IN SUCH CASES WHERE SELLER IN GOOD FAITH DETERMINES THAT FAILURE
TO COMMENCE SUIT WOULD RESULT IN A MATERIAL IMPAIRMENT OF A VALUABLE ASPECT OF
SELLER'S BUSINESS, PROVIDED SELLER CONSULTS WITH PURCHASER PRIOR TO FILING SUCH
SUIT, OR (III) FOR A BREACH OF THIS AGREEMENT;
(K)
NOT (I) PAY, DISCHARGE, OR SATISFY ANY MATERIAL CLAIM, LIABILITIES
OR OBLIGATIONS (ABSOLUTE, ACCRUED, ASSERTED OR UNASSERTED, CONTINGENT OR
OTHERWISE), OTHER THAN IN THE ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST
PRACTICE; OR (II) FAIL TO PAY OR OTHERWISE SATISFY (EXCEPT IF BEING CONTESTED IN
GOOD FAITH) ANY MATERIAL ACCOUNTS PAYABLE, LIABILITIES OR OBLIGATIONS WHEN DUE
AND PAYABLE;
(L)
NOT TAKE OR FAIL TO TAKE ANY ACTION THAT WOULD CAUSE ANY OF THE
REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS AGREEMENT TO BE
UNTRUE IN ANY MATERIAL RESPECT AS OF THE CLOSING DATE (DISREGARDING FOR THESE
PURPOSES ANY MATERIALITY OR MATERIAL ADVERSE EFFECT QUALIFIER CONTAINED
THEREIN);
(M)
NOT MAKE ANY CAPITAL EXPENDITURE EXCEEDING $200,000 INDIVIDUALLY OR
IN THE AGGREGATE OTHER THAN THOSE SET FORTH ON SCHEDULE 5.1(M) WITHOUT THE PRIOR
WRITTEN CONSENT OF KERR;
(N)
NOT PERFORM OR TAKE, OR FAIL TO PERFORM OR TAKE, ANY ACTION THAT
HAS OR IS REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT; OR
(O)
NOT AGREE OR COMMIT TO DO ANY OF THE FOREGOING PROVIDED IN
SUBSECTIONS (B) THROUGH (N).
Notwithstanding any of the foregoing, nothing herein shall be construed to
prohibit or restrict any activities or transactions undertaken with respect to
any of the Excluded Assets, the Retained Liabilities, or the business of Seller
other than the Business, so long as, in each case, such activities or
transactions will not have a negative effect on the Purchased Assets or the
Business.
5.2
INTENTIONALLY OMITTED
5.3
CONSENTS, FILINGS AND AUTHORIZATIONS; EFFORTS TO CONSUMMATE.
AS
PROMPTLY AS PRACTICABLE AFTER THE DATE HEREOF, PURCHASER AND SELLER SHALL MAKE
ALL FILINGS AND SUBMISSIONS UNDER SUCH LAWS AS ARE APPLICABLE TO THEM OR TO
THEIR RESPECTIVE AFFILIATES, INCLUDING THE FILING OF A NOTIFICATION AND REPORT
FORM PURSUANT TO THE HSR ACT, AND AS MAY BE REQUIRED FOR THE CONSUMMATION OF THE
ACQUISITION IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
PURCHASER AND
SELLER SHALL CONSULT WITH EACH OTHER PRIOR TO ANY SUCH FILING, AND NEITHER
SELLER NOR PURCHASER SHALL MAKE ANY SUCH FILING OR SUBMISSION TO WHICH THE OTHER
OF THEM REASONABLY OBJECTS IN WRITING.
ALL SUCH FILINGS SHALL COMPLY IN FORM
AND CONTENT IN ALL MATERIAL RESPECTS WITH APPLICABLE LAWS.
SUBJECT TO THE TERMS
AND CONDITIONS HEREIN, EACH OF SELLER AND PURCHASER, WITHOUT PAYMENT OR
33
further consideration, shall use its commercially reasonable efforts to take or
cause to be taken all actions and to do or cause to be done all things
necessary, proper or advisable:
(a) to cause the conditions to the obligations
of the other Party to consummate the Acquisition to be satisfied as soon as