OF SELLER SET FORTH IN ARTICLE III).
PURCHASER ACKNOWLEDGES AND AGREES THAT NEITHER SELLER, ANY SELLER ENTITY NOR ANY
OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES SHALL HAVE ANY LIABILITY OR
RESPONSIBILITY WHATSOEVER TO PURCHASER, ITS AFFILIATES, OR THE BIDDER
REPRESENTATIVES ON ANY BASIS (INCLUDING IN CONTRACT OR TORT, UNDER FEDERAL OR
STATE SECURITIES LAWS OR OTHERWISE) BASED UPON ANY DUE DILIGENCE MATERIALS
DELIVERED OR MADE AVAILABLE TO PURCHASER, ITS AFFILIATES, OR THE BIDDER
REPRESENTATIVES, EXCEPT THAT THE LIMITATIONS OF THIS SECTION 4.8 SHALL NOT APPLY
TO SELLER INSOFAR AS SELLER MAKES THE SPECIFIC REPRESENTATIONS AND WARRANTIES
SET FORTH IN ARTICLE III OR IN THE EVENT OF A DELIBERATE MISREPRESENTATION BY
SELLER OR ITS AFFILIATES OR REPRESENTATIVES.
SECTION 4.9
NO LITIGATION.
THERE IS NO
ACTION, ORDER OUTSTANDING, SUIT, LITIGATION, LEGAL PROCEEDING OR ARBITRATION
PENDING OR, TO THE KNOWLEDGE OF PURCHASER, THREATENED IN WRITING, AGAINST
PURCHASER OR ANY OF ITS AFFILIATES BY OR BEFORE ANY GOVERNMENTAL AUTHORITY OR
ARBITRATOR WHICH COULD DELAY OR PREVENT THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS.
SECTION 4.10
BROKERS.
EXCEPT FOR UBS SECURITIES
LLC, NO BROKER, FINDER OR INVESTMENT BANKER IS ENTITLED TO ANY BROKERAGE,
FINDER'S OR OTHER FEE, COMMISSION OR EXPENSES IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS BASED UPON ARRANGEMENTS
MADE BY OR ON BEHALF OF PURCHASER.
PURCHASER IS SOLELY RESPONSIBLE FOR SUCH
FEES AND EXPENSES OF UBS SECURITIES LLC.
SECTION 4.11
SOLVENCY.
PURCHASER IS NOT ENTERING
INTO THE TRANSACTIONS CONTEMPLATED HEREBY WITH ACTUAL INTENT TO HINDER, DELAY OR
DEFRAUD EITHER PRESENT OR FUTURE CREDITORS.
IMMEDIATELY AFTER GIVING EFFECT TO
THE TRANSACTIONS CONTEMPLATED HEREBY PURCHASER AND ITS SUBSIDIARIES WILL BE
SOLVENT AND WILL HAVE ADEQUATE CAPITAL TO CARRY ON THEIR RESPECTIVE BUSINESSES.
SECTION 4.12
CONFIDENTIALITY AGREEMENT.
PURCHASER AND ITS AFFILIATES THAT ARE SUBJECT TO THE TERMS OF THE
CONFIDENTIALITY AGREEMENT AND THE BIDDER REPRESENTATIVES HAVE COMPLIED IN ALL
MATERIAL RESPECTS WITH THE TERMS OF THE CONFIDENTIALITY AGREEMENT INCLUDING THE
RESTRICTIONS ON CONTACTING OTHER POTENTIAL ACQUIRERS OF THE BUSINESS AND THE
RESTRICTION ON LIMITING
38
Purchaser's financing sources from providing financing to, or arranging
financing for, any other potential acquirer of the Business.
SECTION 4.13
ABSENCE OF ARRANGEMENTS WITH
MANAGEMENT.
AS OF THE DATE HEREOF, THERE ARE NO CONTRACTS, UNDERTAKINGS,
COMMITMENTS, AGREEMENTS OR OBLIGATIONS OR UNDERSTANDINGS BETWEEN PURCHASER OR
ANY OF ITS AFFILIATES, ON THE ONE HAND, AND ANY MEMBER OF THE MANAGEMENT OF THE
BUSINESS, ON THE OTHER HAND, RELATING TO THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS OR THE OPERATION OF THE BUSINESS AFTER THE CLOSING.
ARTICLE V
COVENANTS
SECTION 5.1
INFORMATION AND DOCUMENTS.
(A) FROM AND AFTER THE DATE HEREOF AND PRIOR TO THE CLOSING, SUBJECT TO
APPLICABLE LAW AND ANY APPLICABLE ORDER, UPON REASONABLE ADVANCE NOTICE TO
SELLER, SELLER SHALL PERMIT PURCHASER AND ITS REPRESENTATIVES TO HAVE
SUPERVISED, REASONABLE ACCESS, DURING REGULAR NORMAL BUSINESS HOURS, TO THE
BUSINESS EMPLOYEES AND EMPLOYEE OF SELLER, AND TO THE ASSETS, PROPERTIES, BOOKS
AND RECORDS OF THE SELLER ENTITIES AND THE CONVEYED ENTITIES TO THE EXTENT
RELATING PRIMARILY TO