DECREE
OUTSTANDING, OR, TO THE KNOWLEDGE OF THE PURCHASER, THREATENED, AGAINST THE
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PURCHASER, OR AGAINST OR RELATING TO ITS PROPERTY, ASSETS OR BUSINESS, THAT
WOULD MATERIALLY AND ADVERSELY AFFECT THE RIGHT, POWER OR CAPACITY OF THE
PURCHASER TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT OR ANY
OF THE ANCILLARY AGREEMENTS TO WHICH IT IS A PARTY.
ARTICLE 5
PRE-CLOSING COVENANTS OF THE PARTIES
SECTION 5.1
CONDUCT OF BUSINESS PRIOR TO
CLOSING.
(1)
DURING THE INTERIM PERIOD, THE VENDORS WILL
CAUSE EACH OF THE CORPORATIONS TO CONDUCT THE BUSINESS IN THE ORDINARY COURSE.
(2)
WITHOUT LIMITING THE GENERALITY OF
SECTION 5.1(1), THE VENDORS WILL CAUSE EACH OF THE CORPORATIONS TO:
(A)
USE ITS BEST EFFORTS TO PRESERVE INTACT ITS
CURRENT BUSINESS ORGANIZATION,
KEEP AVAILABLE THE SERVICES OF ITS PRESENT
EMPLOYEES AND AGENTS AND MAINTAIN GOOD RELATIONS WITH, AND THE GOODWILL OF, ITS
SUPPLIERS, CUSTOMERS, LANDLORDS, CREDITORS, DISTRIBUTORS AND ALL OTHER PERSONS
HAVING BUSINESS RELATIONSHIPS WITH IT;
(B)
CONFER WITH THE PURCHASER CONCERNING
OPERATIONAL MATTERS OF A MATERIAL NATURE;
(C)
USE REASONABLE EFFORTS, CONSISTENT WITH
PAST PRACTICE, TO RETAIN POSSESSION AND CONTROL OF THE ASSETS AND PRESERVE THE
CONFIDENTIALITY OF ANY CONFIDENTIAL OR PROPRIETARY INFORMATION OF THE BUSINESS;
(D)
CONDUCT THE BUSINESS IN SUCH A MANNER THAT,
ON THE CLOSING DATE, THE REPRESENTATIONS AND WARRANTIES OF THE VENDORS IN THIS
AGREEMENT SHALL BE TRUE, CORRECT AND COMPLETE AS IF SUCH REPRESENTATIONS AND
WARRANTIES WERE MADE ON AND AS OF THE CLOSING DATE;
(E)
MAINTAIN IN FORCE THE INSURANCE POLICIES
THAT THEY NOW MAINTAIN, EXCEPT TO THE EXTENT THAT THEY MAY BE REPLACED WITH
EQUIVALENT POLICIES APPROPRIATE TO INSURE ADEQUATELY THE BUSINESS AND ASSETS AT
THE SAME RATES OR AT RATES APPROVED BY THE PURCHASER; AND
(F)
OTHERWISE PERIODICALLY REPORT TO THE
PURCHASER CONCERNING THE STATE OF THE BUSINESS.
SECTION 5.2
PURCHASER'S DUE DILIGENCE.
(1)
THE VENDORS SHALL, AND SHALL CAUSE THE
CORPORATIONS TO, (I) PERMIT THE PURCHASER AND ITS EMPLOYEES, AGENTS, COUNSEL,
ACCOUNTANTS OR OTHER
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REPRESENTATIVES, BETWEEN THIS DATE AND THE CLOSING, WITHOUT UNDUE INTERFERENCE
TO THE ORDINARY CONDUCT OF THE BUSINESS, TO HAVE REASONABLE ACCESS DURING NORMAL
BUSINESS HOURS AND UPON REASONABLE NOTICE TO (W) THE PREMISES OF EACH OF THE
CORPORATIONS, (X) THE ASSETS AND, IN PARTICULAR TO ANY INFORMATION, INCLUDING
ALL BOOKS AND RECORDS WHETHER RETAINED BY THE VENDORS, EITHER OF THE
CORPORATIONS OR OTHERWISE, (Y) ALL CONTRACTS, AND (Z) THE SENIOR PERSONNEL OF
EACH OF THE CORPORATIONS, AND (II) FURNISH TO THE PURCHASER OR ITS EMPLOYEES,
AGENTS, COUNSEL, ACCOUNTANTS OR OTHER REPRESENTATIVES, SUCH FINANCIAL AND
OPERATING DATA AND OTHER INFORMATION WITH RESPECT TO THE ASSETS AND THE
CORPORATIONS AS THE PURCHASER SHALL FROM TIME TO TIME REASONABLY REQUEST.
(2)
NO INVESTIGATIONS MADE BY OR ON BEHALF OF
THE PURCHASER, WHETHER UNDER THIS SECTION 5.2 OR ANY OTHER PROVISION OF THIS
AGREEMENT OR ANY ANCILLARY AGREEMENT, SHALL HAVE THE EFFECT OF WAIVING,
DIMINISHING THE SCOPE OF, OR OTHERWISE AFFECTING ANY REPRESENTATION OR WARRANTY
MADE IN THIS AGREEMENT OR ANY ANCILLARY AGREEMENT.
(3)