AND PERFORMANCE BY BUYER
OF THIS AGREEMENT AND EACH OF THE ANCILLARY AGREEMENTS AND THE CONSUMMATION BY
BUYER OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY DO NOT AND WILL NOT
(I) CONTRAVENE OR CONFLICT WITH THE CORPORATE CHARTER OR BYLAWS OF BUYER OR
(II) ASSUMING COMPLIANCE WITH THE MATTERS REFERRED TO IN SECTION 4.03,
CONTRAVENE OR CONFLICT WITH ANY PROVISION OF ANY LAW, REGULATION, JUDGMENT,
INJUNCTION, ORDER OR DECREE BINDING UPON OR APPLICABLE TO BUYER.
4.05
LITIGATION. THERE IS NO ACTION, SUIT, INVESTIGATION OR PROCEEDING
PENDING AGAINST, OR TO THE KNOWLEDGE OF BUYER THREATENED AGAINST OR AFFECTING,
BUYER BEFORE ANY COURT OR ARBITRATOR OR ANY GOVERNMENTAL BODY, AGENCY OR
OFFICIAL WHICH IN ANY MANNER CHALLENGES OR SEEKS TO PREVENT, ENJOIN, ALTER OR
MATERIALLY DELAY THE TRANSACTIONS CONTEMPLATED HEREBY.
4.06
FINDERS' FEES. THERE IS NO INVESTMENT BANKER, BROKER, FINDER OR
OTHER INTERMEDIARY THAT HAS BEEN RETAINED BY OR IS AUTHORIZED TO ACT ON BEHALF
OF BUYER WHO MIGHT BE ENTITLED TO ANY FEE OR COMMISSION FROM SELLER OR ANY OF
ITS AFFILIATES UPON CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
23
4.07
FINANCING. PRIOR TO AND ON THE CLOSING DATE, BUYER WILL HAVE
SUFFICIENT AND AVAILABLE FUNDS TO ENABLE BUYER TO PAY THE INITIAL CASH PAYOUT
AND TO PAY ALL FEES AND EXPENSES RELATED TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT PAYABLE BY BUYER ON THE CLOSING DATE.
ARTICLE V
COVENANTS OF SELLER
Seller agrees that:
5.01
CONDUCT OF THE BUSINESS. FROM THE DATE HEREOF UNTIL THE CLOSING
DATE, SELLER SHALL CONDUCT THE BUSINESS IN THE ORDINARY COURSE CONSISTENT WITH
PAST PRACTICES AND SHALL USE ITS REASONABLE BEST EFFORTS TO PRESERVE INTACT THE
BUSINESS ORGANIZATION AND RELATIONSHIPS WITH THIRD PARTIES AND TO KEEP AVAILABLE
THE SERVICES OF THE PRESENT EMPLOYEES OF THE BUSINESS. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, FROM THE DATE HEREOF UNTIL THE CLOSING DATE, SELLER
WILL NOT:
(A)
ACQUIRE A MATERIAL AMOUNT OF ASSETS RELATED TO THE BUSINESS FROM
ANY OTHER PERSON;
(B)
SELL, LEASE, LICENSE OR OTHERWISE DISPOSE OF ANY PURCHASED ASSETS
EXCEPT (I) PURSUANT TO EXISTING CONTRACTS OR COMMITMENTS, (II) IN THE ORDINARY
COURSE CONSISTENT WITH PAST PRACTICES AND (III) WITHOUT THE CONSENT OF BUYER,
WHICH SHALL NOT BE UNREASONABLY WITHHELD;
(C)
RENEW OR ENTER INTO ANY MAINTENANCE AGREEMENT EXCEPT IN THE
ORDINARY COURSE OF BUSINESS AND ON THE SELLER'S STANDARD TERMS AND CONDITIONS
WITHOUT THE CONSENT OF BUYER, WHICH SHALL NOT BE UNREASONABLY WITHHELD; OR
(D)
TERMINATE OR OTHERWISE LAYOFF ANY EMPLOYEES OF THE BUSINESS, AND
WILL PRESERVE INTACT AND KEEP AVAILABLE THE SERVICES OF ALL EMPLOYEES OF THE
BUSINESS, IN EACH CASE IN ACCORDANCE WITH PAST PRACTICES.
Seller will not take or agree or commit to take any action that would make any
representation and warranty made by Seller under this Agreement on the date of
its execution and delivery inaccurate in any respect at, or as of any time prior
to, the Closing Date.
5.02
ACCESS TO INFORMATION. FROM THE DATE HEREOF UNTIL THE CLOSING DATE,
SELLER SHALL (A) GIVE