PERSON AND IN SUCH A MANNER AS NOT TO GIVE RISE TO ANY
VALID CLAIM AGAINST SELLER (BY REASON OF PURCHASER'S ACTIONS) FOR A BROKERAGE
COMMISSION, FINDER'S FEE OR OTHER LIKE PAYMENT TO ANY PERSON.
5.07
"AS IS" SALE.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, PURCHASER UNDERSTANDS AND AGREES THAT THE MEMBERSHIP INTEREST AND THE
COMPANY'S ASSETS ARE BEING ACQUIRED "AS IS, WHERE IS" ON THE CLOSING DATE, AND
IN THEIR CONDITION ON THE CLOSING DATE AND THAT PURCHASER IS RELYING ON ITS OWN
EXAMINATION OF THE COMPANY AND ITS ASSETS.
5.08
DUE DILIGENCE INSPECTIONS AND REVIEWS.
SUBJECT TO ANY INTENTIONAL
MISREPRESENTATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT WITH RESPECT TO ANY
INFORMATION PROVIDED BY SELLER OR ITS REPRESENTATIVES, PURCHASER ACKNOWLEDGES
AND AGREES THAT IT HAS, PRIOR TO ITS EXECUTION OF THIS AGREEMENT, FULLY
COMPLETED TO ITS SATISFACTION ALL OF ITS DUE DILIGENCE INSPECTIONS AND REVIEWS.
SUBJECT TO THE PROVISIONS OF SECTION 12.02 HEREOF, PURCHASER WILL BEAR ALL OF
ITS OWN COSTS, EXPENSES AND CHARGES INCURRED IN CONNECTION WITH ITS DUE
DILIGENCE INSPECTIONS AND REVIEWS.
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE CLOSING
Pending the Closing, and except as otherwise consented to or approved by
Purchaser in writing, Seller agrees to cause the Company to do the following:
6.01
REGULAR COURSE OF BUSINESS.
EXCEPT AS OTHERWISE PROVIDED IN SECTIONS
6.04, 7.27 AND 7.28 BELOW, THE COMPANY SHALL CARRY ON ITS BUSINESS DILIGENTLY
AND SUBSTANTIALLY IN THE SAME MANNER AS HERETOFORE CONDUCTED, AND THE COMPANY
SHALL NOT INSTITUTE ANY NEW METHODS OF PURCHASE, SALE, LEASE, MANAGEMENT,
ACCOUNTING OR OPERATION OR ENGAGE IN ANY TRANSACTION OR ACTIVITY, ENTER INTO ANY
AGREEMENT OR MAKE ANY COMMITMENT, EXCEPT IN THE ORDINARY COURSE OF BUSINESS
CONSISTENT WITH PAST PRACTICES OR AS REQUIRED BY THE BANKRUPTCY COURT.
6.02
AMENDMENTS.
NO CHANGE OR AMENDMENT SHALL BE MADE IN THE ORGANIZATIONAL
DOCUMENTS OF THE COMPANY.
23
6.03
CAPITAL CHANGES.
THE COMPANY WILL NOT ISSUE OR SELL ANY MEMBERSHIP
INTERESTS OR OTHER SECURITIES, ACQUIRE DIRECTLY OR INDIRECTLY, BY REDEMPTION OR
OTHERWISE, ANY SUCH MEMBERSHIP INTERESTS, RECLASSIFY OR SPLIT-UP ANY SUCH
MEMBERSHIP INTERESTS, DECLARE OR PAY ANY DISTRIBUTIONS THEREON OR MAKE ANY OTHER
DISTRIBUTION WITH RESPECT THERETO, OR GRANT OR ENTER INTO ANY OPTIONS, WARRANTS,
CALLS OR COMMITMENTS OF ANY KIND WITH RESPECT THERETO.
6.04
ENVIRONMENTAL REMEDIATION; REQUIREMENTS OF GOVERNMENTAL AUTHORITIES.
THE COMPANY SHALL OPERATE IN COMPLIANCE WITH ORDERS FROM AND OTHER REQUIREMENTS
OF GOVERNMENTAL AUTHORITIES, INCLUDING THE CONSENT ORDER DATED JULY 22, 2005,
WITH THE NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION RELATING TO CERTAIN
ENVIRONMENTAL REMEDIATION AT THE HILLBURN FACILITY AND THE REMEDIATION PLAN FOR
THE SWINGING BRIDGE FACILITY APPROVED BY THE FEDERAL ENERGY REGULATORY
COMMISSION IN ITS LETTER DATED JUNE 14, 2006 (AS SUCH CONSENT ORDER AND
REMEDIATION PLAN MAY BE REVISED, AMENDED OR SUPPLEMENTED FROM TIME TO TIME).
ARTICLE VII
COVENANTS OF THE PARTIES
Seller hereby covenants and agrees with Purchaser, and Purchaser hereby
covenants and agrees with Seller that:
7.01
REASONABLE ACCESS.
SELLER SHALL CAUSE THE COMPANY TO AFFORD PURCHASER
AND AUTHORIZED REPRESENTATIVES OF