in accordance with applicable laws,
including Federal Communications Commission regulations, and in accordance with
the provisions of the Confidentiality Agreement, dated July 30, 2001, between
the Purchaser and the Seller (the "2001 Confidentiality Agreement").
Purchaser
hereby acknowledges that all references to "Counsel Communications" in the
Confidentiality Agreement are references to the Purchaser, and all obligations
of "Counsel Communications" to the Seller under the Confidentiality Agreement
are obligations from the Purchaser to the Seller under the Confidentiality
Agreement.
The Seller and the Purchaser have also entered into a supplemental
agreement of even date hereto (the "2002 Confidentiality Agreement").
6.3.
Conduct of Business.
Subject to any obligations as debtors-in-possession
under the Bankruptcy Code and except as otherwise contemplated herein or with
the prior consent of the Purchaser, not to be unreasonably withheld, from the
date of this Agreement to the Closing Date, the Seller
17
(A)
WILL CONDUCT THE BUSINESS CONSISTENT WITH THE ORDINARY AND NORMAL
COURSE OF BUSINESS DURING ITS BANKRUPTCY CASE AND USE REASONABLE EFFORTS TO
PRESERVE ITS RELATIONSHIPS (SUCH AS THEY EXIST ON THE DATE HEREOF) WITH ITS
CUSTOMERS AND SUPPLIERS AND WILL USE REASONABLE EFFORTS TO RETAIN THE SERVICES
OF ITS OFFICERS, EMPLOYEES AND AGENTS;
(B)
WILL PROMPTLY NOTIFY PURCHASER OF ANY ORDER ENTERED IN THE
BANKRUPTCY CASE THAT MATERIALLY AFFECTS OR WILL MATERIALLY AFFECT THE OPERATION
AND VALUE OF THE BUSINESS AND PROMPTLY DELIVER A COPY OF EACH SUCH ORDER TO
PURCHASER;
(C)
WILL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE PURCHASER
(I)
ENTER INTO OR ENGAGE IN ANY MATERIAL
TRANSACTION OR AGREEMENT IN CONNECTION WITH THE BUSINESS OTHER THAN, IN
CONSULTATION WITH THE PURCHASER, THE AGREEMENTS DESCRIBED IN THE CONTRACTS
LETTER;
(II)
SELL, TRANSFER OR OTHERWISE DISPOSE OF ANY
OF THE ASSETS;
(III)
ENTER INTO TERM COMMITMENTS EXTENDING BEYOND
SEPTEMBER 30, 2002 FOR FEATURE GROUP AND VOICE ONLY CUSTOMER CIRCUITS, UNLESS
MUTUALLY AGREED UPON BY SELLER AND PURCHASER ON A CIRCUIT BY CIRCUIT BASIS;
(IV)
ENTER INTO TERM COMMITMENTS EXTENDING BEYOND
SEPTEMBER 30, 2002 FOR UP TO 50% OF ALL EXISTING VOICE IMT CIRCUITS WITH THE
SPECIFIC EXCLUDED CIRCUITS TO BE AGREED UPON BY SELLER AND PURCHASER WITHIN
SEVEN DAYS OF THE DATE HEREOF; OR
(V)
TAKE ANY ACTION OR COURSE OF ACTION
INCONSISTENT WITH ITS COMPLIANCE WITH ITS COVENANTS AND AGREEMENTS HEREUNDER OR
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR WHICH WOULD
MATERIALLY ADVERSELY AFFECT THE INTERESTS OF THE PURCHASER HEREUNDER OR
MATERIALLY DIMINISH THE VALUE OF THE BUSINESS;
provided, however, that the Seller may continue its practice of migrating off
from various telecommunications providers and suppliers in accordance with plans
previously disclosed to the Purchaser.
Notwithstanding anything set forth in
this Section 6.3, in the event the Seller wishes to enter into a circuit term
commitment for any circuit that falls outside of the categories and/or
percentages described in subsections (iii) and (iv) of this Section 6.3(c), the
Seller shall give the Purchaser not less than five Business Days' written notice
before entering into any such term commitment.
The Purchaser may