TRANSACTIONS OTHER THAN
DERIVATIVE TRANSACTIONS THAT ARE BONA-FIDE HEDGES ENTERED INTO IN THE ORDINARY
COURSE OF BUSINESS CONSISTENT WITH PAST PRACTICE AND (II) HEDGE, IN DERIVATIVE
TRANSACTIONS OF A TYPE, AMOUNT AND TENOR CONSISTENT WITH PAST PRACTICE, THE
INVENTORY PURCHASED BY THE COMPANY;
(M)
NOT PAY ANY FEE RELATING TO OBTAINING THE CONSENT UNDER THE CREDIT
AGREEMENT IN CONNECTION WITH THE CONTINUATION OF THE COMPANY'S LINE OF CREDIT
AFTER THE CLOSING, WITHOUT THE PRIOR WRITTEN CONSENT OF PURCHASER (WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED); AND
(N)
NOT AGREE OR OTHERWISE COMMIT, WHETHER IN WRITING OR OTHERWISE, TO
DO ANY OF THE FOREGOING.
NOTWITHSTANDING ANYTHING IN THIS SECTION 5.2 TO THE CONTRARY, THE COMPANY SHALL
NOT BE PROHIBITED FROM TAKING ALL REASONABLE ACTIONS NECESSARY TO CONSUMMATE THE
F&H LLC MERGER.
5.3
ACCESS TO RECORDS.
SUBJECT TO THE TERMS OF THE CONFIDENTIALITY
AGREEMENT, THE PURCHASER SHALL BE ENTITLED, THROUGH ITS EMPLOYEES AND
REPRESENTATIVES, TO ENTER UPON AND MAKE SUCH REASONABLE INVESTIGATION OF THE
ASSETS, PROPERTIES, BUSINESS AND OPERATIONS OF THE COMPANY, AND SUCH EXAMINATION
OF THE BOOKS AND RECORDS, FINANCIAL CONDITION AND OPERATIONS OF THE COMPANY AS
THE PURCHASER MAY REASONABLY REQUEST, INCLUDING, WITHOUT LIMITATION, THE REPORTS
AND INFORMATION SET FORTH ON SCHEDULE 5.3 HERETO.
ANY SUCH INVESTIGATION AND
EXAMINATION SHALL BE CONDUCTED AT REASONABLE TIMES UPON REASONABLE PRIOR NOTICE
TO THE COMPANY AND UNDER REASONABLE CIRCUMSTANCES; PROVIDED, HOWEVER, THAT
(I) SUCH INVESTIGATION SHALL NOT UNREASONABLY INTERFERE WITH THE BUSINESS
OPERATIONS OF THE COMPANY; (II) THE COMPANY SHALL NOT BE REQUIRED TO PROVIDE
ACCESS TO ANY INFORMATION OR TAKE ANY OTHER ACTION THAT WOULD CONSTITUTE A
WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE; AND (III) THE COMPANY NEED NOT SUPPLY
THE PURCHASER WITH ANY INFORMATION WHICH, IN THE REASONABLE JUDGMENT OF THE
COMPANY, THE COMPANY IS UNDER A LEGAL OBLIGATION NOT TO SUPPLY.
5.4
SUPPLEMENTAL DISCLOSURE; NOTICE OF DEVELOPMENTS.
(A)
DURING THE PERIOD PRIOR TO THE CLOSING DATE, EACH PARTY SHALL, AS
SOON AS PRACTICABLE, NOTIFY THE OTHER PARTY IN WRITING OF:
(I)
THE DISCOVERY BY SUCH PARTY OF ANY EVENT, CONDITION, FACT OR
CIRCUMSTANCE THAT OCCURRED OR EXISTED ON OR PRIOR TO THE DATE OF THIS AGREEMENT
AND THAT CAUSED OR CONSTITUTES AN INACCURACY IN OR BREACH OF ANY REPRESENTATION
OR WARRANTY MADE BY SUCH PARTY IN THIS AGREEMENT;
(II)
ANY EVENT, CONDITION, FACT OR CIRCUMSTANCE THAT OCCURS, ARISES OR
EXISTS AFTER THE DATE OF THIS AGREEMENT AND THAT WOULD CAUSE OR CONSTITUTE AN
INACCURACY IN OR BREACH OF ANY REPRESENTATION OR WARRANTY MADE BY SUCH PARTY IN
THIS AGREEMENT IF (A) SUCH REPRESENTATION OR WARRANTY HAD BEEN MADE AS OF THE
TIME OF THE OCCURRENCE, EXISTENCE OR DISCOVERY OF SUCH EVENT, CONDITION, FACT OR
CIRCUMSTANCE, OR (B) SUCH EVENT, CONDITION, FACT OR CIRCUMSTANCE HAD OCCURRED,
ARISEN OR EXISTED ON OR PRIOR TO THE DATE OF THIS AGREEMENT;
(III)
ANY BREACH OF ANY COVENANT OR OBLIGATION OF SUCH PARTY; AND
(IV)
ANY EVENT, CONDITION, FACT OR CIRCUMSTANCE THAT WOULD MAKE THE
TIMELY SATISFACTION OF ANY OF THE CONDITIONS SET