AGREEMENT, FROM THE EFFECTIVE DATE TO THE CLOSING SELLER
SHALL CONDUCT THE BUSINESS IN LIGHT OF THE EXISTING CIRCUMSTANCES IN SUCH A
MANNER AS TO PERMIT THE SELLER TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT
AND TO MAINTAIN THE ONGOING OPERATIONS OF THE BUSINESS.
IN ADDITION, AND
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FROM THE EFFECTIVE DATE TO THE
CLOSING, THE SELLER SHALL NOT DO ANY OF THE FOLLOWING WITHOUT THE PRIOR WRITTEN
CONSENT OF BUYER:
(A)
SELL, LEASE (AS LESSOR), LICENSE OR OTHERWISE DISPOSE OF OR SUBJECT TO ANY
ENCUMBRANCES (OTHER THAN PERMITTED LIENS) ANY OF THE ASSETS OR ANY PROPERTIES OR
ASSETS THAT ARE MATERIAL, INDIVIDUALLY OR IN THE AGGREGATE, TO THE SELLER;
(B)
MODIFY OR TERMINATE ANY CONTRACT BEING ASSUMED BY SELLER AS PART OF THIS
AGREEMENT OR ENTER INTO, MODIFY OR TERMINATE ANY SUCH CONTRACT THAT IF IT HAD
BEEN ENTERED INTO PRIOR TO THE DATE OF THIS AGREEMENT, WOULD HAVE HAD TO BE
LISTED ON EXHIBIT D;
(C)
AUTHORIZE ANY OF, OR COMMIT OR AGREE TO TAKE ANY OF, THE FOREGOING
ACTIONS.
9.2
OTHER ACTIONS.
SELLER AND BUYER SHALL NOT, AND SHALL NOT PERMIT
ANY OF THEIR RESPECTIVE AFFILIATES TO TAKE ANY ACTION THAT WOULD, OR THAT IS
REASONABLY LIKELY TO, RESULT IN (I) ANY OF THE REPRESENTATIONS AND WARRANTIES OF
SUCH PARTY SET FORTH IN THIS AGREEMENT BECOMING UNTRUE, OTHER THAN FOR SUCH
FAILURES TO BE TRUE AND CORRECT THAT, INDIVIDUALLY OR IN THE AGGREGATE, HAVE NOT
RESULTED AND ARE NOT
22
REASONABLY LIKELY TO RESULT IN THE CONDITION IN SECTION 5.1 (IN THE CASE OF THE
SELLER) OR SECTION 6.1 (IN THE CASE OF BUYER) NOT BEING SATISFIED OR (II) ANY
CONDITION TO THE CLOSING SET FORTH IN ARTICLE 5 AND ARTICLE 6
NOT BEING
SATISFIED.
9.3
TERMINATION.
(A)
THIS AGREEMENT MAY BE TERMINATED AT ANY TIME PRIOR TO THE CLOSING DATE:
(I)
BY WRITTEN AGREEMENT OF BOTH BUYER AND
SELLER;
(II)
BY SELLER BY WRITTEN NOTICE TO BUYER IF THE GENERAL PARTNER OF
SELLER AND THE BOARD OF DIRECTORS OF SBC WITHHOLDS OR WITHDRAWS THEIR APPROVAL
AND ADOPTION OF THIS AGREEMENT, IN RESPONSE TO A SUPERIOR PROPOSAL (AS DEFINED
BELOW); OR
(III)
SUBJECT TO SECTION 9.3(B) BELOW, BY WRITTEN NOTICE FROM EITHER
SELLER OR BUYER IF THE CLOSING SHALL NOT HAVE OCCURRED ON OR PRIOR TO MAY 15,
2005.
(B)
SELLER SHALL PAY TO BUYER $250,000 IN CASH ("TERMINATION FEE") IN THE
EVENT THAT THIS AGREEMENT (I) IS TERMINATED BY SELLER PURSUANT TO SECTION
9.3(A)(II), OR (II) IS OTHERWISE UNILATERALLY TERMINATED BY SELLER OR DOES NOT
CLOSE ON OR BEFORE MAY 15, 2005 BECAUSE OF SELLER'S NON-COMPLIANCE WITH ANY ONE
OR MORE OF SECTIONS 5.1 THROUGH 5.8, 5.13 OR 5.14 IF BUYER HAS OTHERWISE
PERFORMED AND COMPLIED WITH ITS COVENANTS, AGREEMENTS OR CONDITIONS TO BE
PERFORMED OR COMPLIED WITH BY IT UNDER THIS AGREEMENT, REGARDLESS OF THE
OCCURRENCE OR NON-OCCURRENCE OF ANY CONDITION SET FORTH IN SECTION 6.2.
SELLER
SHALL BE REQUIRED TO PAY THE TERMINATION FEE TO BUYER WITHIN