NO LEGAL
PROCEEDINGS PENDING AGAINST BUYER, THAT ARE REASONABLY LIKELY, EITHER
INDIVIDUALLY OR IN THE AGGREGATE, TO AFFECT BUYER'S PERFORMANCE UNDER THIS
AGREEMENT OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN.
4.6
AVAILABILITY OF FUNDS.
BUYER HAS, AND AT
THE CLOSING WILL HAVE, SUFFICIENT ACCESS TO FUNDS TO PAY THE PURCHASE PRICE, TO
PROVIDE THE DIVISION WITH SUFFICIENT WORKING CAPITAL AND TO PAY ANY OTHER
AMOUNTS PAYABLE PURSUANT TO THIS AGREEMENT AND TO EFFECT THE TRANSACTIONS
CONTEMPLATED HEREBY.
ARTICLE V
PRE-CLOSING COVENANTS
5.1
COMMERCIALLY REASONABLE EFFORTS.
SUBJECT TO
THE TERMS AND CONDITIONS HEREOF, EACH OF THE PARTIES SHALL USE ITS RESPECTIVE
COMMERCIALLY REASONABLE EFFORTS TO TAKE, OR CAUSE TO BE TAKEN, ALL ACTION AND TO
DO, OR CAUSE TO BE DONE, ALL THINGS NECESSARY, PROPER OR ADVISABLE TO CONSUMMATE
AND MAKE THE ACQUISITION EFFECTIVE.
5.2
CONDUCT PRIOR TO CLOSING.
DURING THE PERIOD
FROM THE DATE OF THIS AGREEMENT TO THE CLOSING DATE, AND EXCEPT AS OTHERWISE
CONTEMPLATED BY THIS AGREEMENT OR THE DISCLOSURE SCHEDULE OR CONSENTED TO BY
BUYER, SELLER WILL OPERATE THE DIVISION ONLY IN THE ORDINARY COURSE CONSISTENT
WITH PAST PRACTICES AND WILL USE ITS COMMERCIALLY REASONABLE EFFORTS TO PRESERVE
INTACT THE DIVISION'S ORGANIZATION, PROPERTIES, BUSINESS AND RELATIONSHIPS WITH
CUSTOMERS, EMPLOYEES AND OTHERS WITH WHOM BUSINESS RELATIONSHIPS EXIST.
FURTHERMORE, FROM THE DATE OF THIS AGREEMENT UNTIL THE EARLIER OF THE CLOSING
DATE OR THE TERMINATION OF THIS AGREEMENT, UNLESS THE PRIOR WRITTEN CONSENT OF
BUYER SHALL HAVE BEEN OBTAINED AND EXCEPT AS OTHERWISE EXPRESSLY CONTEMPLATED
HEREIN, SELLER COVENANTS THAT WITH RESPECT TO THE ACQUIRED ASSETS IT SHALL NOT
DO OR AGREE OR COMMIT TO DO ANY OF THE FOLLOWING:
(A)
EXCEPT IN THE ORDINARY COURSE OF BUSINESS, ENTER INTO OR AMEND ANY
EMPLOYMENT CONTRACT WITH ANY PERSON; OR
(B)
EXCEPT IN THE ORDINARY COURSE OF BUSINESS, ENTER INTO, MODIFY, AMEND OR
TERMINATE ANY ACQUIRED CONTRACT.
12
5.3
ACCESS TO PROPERTIES AND RECORDS.
SUBJECT
TO APPLICABLE FEDERAL AND STATE PRIVACY LAWS, SELLER SHALL PERMIT BUYER TO
CONDUCT ITS DUE DILIGENCE REVIEW OF THE DIVISION THROUGH THE CLOSING DATE.
UPON
REASONABLE ADVANCE NOTICE BY BUYER AND DURING NORMAL BUSINESS HOURS, BUYER SHALL
HAVE ACCESS TO AND THE SELLER SHALL DISCLOSE AND MAKE AVAILABLE ALL OF THE
DIVISION'S FACILITIES, BOOKS, RECORDS, FINANCIAL DATA AND OTHER INFORMATION
RELATING TO THE ACQUIRED ASSETS, THE ASSUMED LIABILITIES, AND DIVISION EMPLOYEES
THAT ARE REASONABLY NECESSARY IN ORDER FOR BUYER TO COMPLETE THE DUE DILIGENCE
PROCESS OR ANY DATA RELEVANT TO BUYER'S REGULATORY APPROVAL PROCESS.
THE DUE
DILIGENCE SEARCHES WILL BE SUBJECT TO APPLICABLE LAWS RELATING TO DISCLOSURE AND
EXCHANGE OF INFORMATION AND MAY BE STAGGERED UPON REQUEST OF THE SELLER SO AS
NOT TO ADVERSELY IMPACT DAY-TO-DAY OPERATIONS.
5.4
FILINGS AND CONSENT.
PROMPTLY FOLLOWING THE
EXECUTION AND DELIVERY HEREOF, THE SHAREHOLDER, SELLER, BUYER, AND THEIR
RESPECTIVE AFFILIATES, AS APPLICABLE, SHALL FILE AND USE THEIR COMMERCIALLY
REASONABLE EFFORTS TO OBTAIN ALL CONSENTS, APPROVALS, PERMITS, AUTHORIZATIONS,
NOTICES, AND REGISTRATIONS (COLLECTIVELY, "FILINGS AND CONSENT SOLICITATIONS")
NECESSARY TO CONSUMMATE THE ACQUISITION.
EACH PARTY SHALL COOPERATE AND CONSULT
WITH