ANY EXPRESS OR
IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR USE OR PURPOSE AS TO ANY OF THE ASSETS OF THE BUSINESS.
(C)
IN FURTHERANCE OF THE FOREGOING, BUYER ACKNOWLEDGES AND AGREES
THAT EXCEPT FOR AN ACTION BASED ON THE REPRESENTATIONS AND WARRANTIES CONTAINED
IN ARTICLE III OF THIS AGREEMENT, NO ACTION MAY BE BROUGHT BY OR ON BEHALF OF
BUYER OR ANY OTHER PERSON AGAINST PARENT, SELLER OR ANY OTHER PERSON, AND
NEITHER PARENT, SELLER NOR ANY OTHER PERSON WILL HAVE OR BE SUBJECT TO ANY
LIABILITY OR INDEMNIFICATION OBLIGATION TO BUYER OR ANY OTHER PERSON, BASED ON
ANY REPRESENTATIONS AND WARRANTIES OR RESULTING FROM THE DISTRIBUTION TO BUYER,
OR BUYER'S USE OF, ANY INFORMATION, INCLUDING THE CONFIDENTIAL DESCRIPTIVE
MEMORANDUM DATED JANUARY 2007 OR ANY INFORMATION, PROJECTIONS, DOCUMENTS OR
MATERIAL MADE AVAILABLE TO BUYER AT ANY TIME IN CERTAIN "DATA ROOMS," MANAGEMENT
PRESENTATIONS, "BREAK-OUT" DISCUSSIONS, RESPONSES TO QUESTIONS SUBMITTED BY OR
ON BEHALF OF BUYER, WHETHER ORALLY OR IN WRITING, OR IN ANY OTHER FORM IN
EXPECTATION OR FURTHERANCE OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR
THE ANCILLARY AGREEMENTS.
21
ARTICLE V
COVENANTS
5.1
Conduct of Business.
During the period from the date of this
Agreement to the earlier of (x) the termination of this Agreement pursuant to
Article IX or (y) the Closing Date, except as set forth in Section 5.1 of the
Seller Disclosure Schedule and except as expressly contemplated by this
Agreement, the Contribution Agreement or any other Ancillary Agreement or as
required by any Law, Order (including the Decision and Order and any other Order
of the Commission) or Permit or as consented to in writing by Buyer, which
consent shall not be unreasonably conditioned, delayed or withheld, Seller shall
and shall cause the Company to:
(A)
OPERATE THE BUSINESS IN THE ORDINARY COURSE AND SUBSTANTIALLY THE
SAME MANNER AS IT IS CURRENTLY BEING CONDUCTED;
(B)
MAINTAIN THE TANGIBLE PERSONAL PROPERTY OF THE BUSINESS IN GOOD
REPAIR, ORDER AND CONDITION, REASONABLE WEAR AND TEAR EXCEPTED;
(C)
MAINTAIN THE SELLER CORPORATE POLICIES WITH RESPECT TO THE
BUSINESS CONSISTENT WITH PAST PRACTICE; PROVIDED THE PARTIES ACKNOWLEDGE THAT
PARENT OR SELLER MAY AT ANY TIME CANCEL PROSPECTIVELY OR NOT RENEW ANY OF THE
SELLER CORPORATE POLICIES AS TO COVERAGE RELATING TO EVENTS AFTER THE CLOSING
DATE OR INSURED RISKS OTHER THAN THOSE ASSOCIATED WITH THE BUSINESS ON OR PRIOR
TO THE CLOSING DATE;
(D)
MAINTAIN THE BOOKS AND RECORDS OF THE BUSINESS SUBSTANTIALLY IN
ACCORDANCE WITH PRIOR PRACTICE, EXCEPT AS CHANGES ARE MANDATED BY GOVERNMENTAL
AUTHORITIES OR REQUIRED BY GAAP OR TO COMPLY WITH APPLICABLE REQUIREMENTS OF
LAW;
(E)
MAINTAIN ITS CORPORATE EXISTENCE AND THE LIMITED LIABILITY COMPANY
EXISTENCE OF THE COMPANY;
(F)
NOT MAKE ANY MATERIAL CHANGE IN THE GENERAL LINES OF BUSINESS OF
THE BUSINESS;
(G)
NOT SELL, LEASE, LICENSE, MORTGAGE, PLEDGE, ENCUMBER OR DISPOSE
OF, OR MAKE ANY CONTRACT FOR THE SALE, LEASE, LICENSING, MORTGAGE, PLEDGE,
ENCUMBRANCE OR DISPOSITION (INCLUDING BY WAY OF ANY NON-CASH DIVIDEND) OF