required
with respect to matters discovered by any environmental assessment conducted by,
for or on behalf of Buyer, Buyer agrees that Sellers shall be the responsible
parties for disclosing such matters to the appropriate Governmental Bodies,
unless Buyer is required by Legal Requirement to make such disclosure, in which
case Buyer shall so notify Sellers and allow Sellers a reasonable time to
prepare such disclosure.
6.2
OPERATION OF THE BUSINESS
Between the date of this Agreement and the Closing, with respect to the Business
and Assets, unless Buyer otherwise consents in writing, each Seller shall:
(A)
CONDUCT THE BUSINESS ONLY IN THE ORDINARY
COURSE OF THE BUSINESS CONSISTENT WITH PAST PRACTICES OR REASONABLE FUTURE
EXPECTATIONS;
(B)
WITHOUT MAKING ANY COMMITMENT ON BUYER'S
BEHALF, USE ITS COMMERCIALLY REASONABLE EFFORTS TO, IN ALL MATERIAL RESPECTS,
PRESERVE INTACT THE CURRENT BUSINESS ORGANIZATION, KEEP AVAILABLE THE SERVICES
OF ITS EMPLOYEES AND AGENTS AND MAINTAIN ITS RELATIONS AND GOODWILL WITH
SUPPLIERS, CUSTOMERS, LANDLORDS, CREDITORS, EMPLOYEES, AGENTS AND OTHERS HAVING
BUSINESS RELATIONSHIPS WITH IT;
(C)
EXCEPT FOR CAUSE, MAKE NO MATERIAL CHANGES
IN MANAGEMENT PERSONNEL OF THE BUSINESS;
(D)
NOT HIRE ANY MANAGEMENT PERSONNEL OF THE
BUSINESS, MAKE ANY CHANGES TO ANY SELLER BENEFIT PLAN AFFECTING THE AFFECTED
EMPLOYEES, OR INCREASE THE WAGES, SALARIES OR BENEFITS OF ANY AFFECTED EMPLOYEE,
OTHER THAN IN THE ORDINARY COURSE OF BUSINESS;
(E)
MAINTAIN THE ASSETS IN A STATE OF REPAIR
AND CONDITION THAT COMPLIES WITH LEGAL REQUIREMENTS, IS CONSISTENT WITH THE
REQUIREMENTS AND NORMAL CONDUCT OF THE BUSINESS AND CONSISTENT WITH THE RECENT
NORMAL AND ROUTINE MAINTENANCE SCHEDULE PERFORMED BY SELLERS;
(F)
USE ITS COMMERCIALLY REASONABLE EFFORTS
TO KEEP IN FULL FORCE AND EFFECT, WITHOUT AMENDMENT, ALL MATERIAL RIGHTS
RELATING TO THE BUSINESS;
(G)
COMPLY WITH ALL LEGAL REQUIREMENTS AND USE
ITS COMMERCIALLY REASONABLE EFFORTS TO COMPLY WITH ALL CONTRACTUAL OBLIGATIONS
APPLICABLE TO THE OPERATIONS OF THE BUSINESS;
(H)
CONTINUE IN FULL FORCE AND EFFECT THE
INSURANCE COVERAGE UNDER THE POLICIES SET FORTH IN SECTION 3.18(A) OF THE SELLER
DISCLOSURE LETTER OR SUBSTANTIALLY EQUIVALENT POLICIES;
(I)
NOT ENTER INTO A SELLER CONTRACT OR BID
DESCRIBED IN SECTION 3.17(A) OR RELATING TO BUSINESS INTELLECTUAL PROPERTY OTHER
THAN IN THE ORDINARY COURSE OF BUSINESS;
42
(J)
NOT DISPOSE OF OR PERMIT TO LAPSE ANY
RIGHTS TO THE USE OF ANY BUSINESS INTELLECTUAL PROPERTY OR PERMIT ANY
GOVERNMENTAL AUTHORIZATION TO EXPIRE; AND
(K)
MAINTAIN ALL BOOKS AND RECORDS OF SELLERS
RELATING TO THE BUSINESS IN THE ORDINARY COURSE OF THE BUSINESS CONSISTENT WITH
PAST PRACTICES.
6.3
NEGATIVE COVENANT
Except as otherwise expressly permitted herein, between the date of this
Agreement and the Closing Date, each Seller shall not, without the prior written
Consent of Buyer, (a) take any affirmative action, or fail to take any
reasonable action within its control, as a result of which any of the changes or
events listed in Section 3.16 would occur or be reasonably likely to occur; or
(b) make any modification to any material Seller Contract or Governmental
Authorization.
6.4
TAX CLEARANCE CERTIFICATES
Promptly