DISCRETION, DETERMINE OTHERWISE.
SELLERS WILL
BEAR THE COSTS OF THE PHASE I ESAS AND THE PHASE II ESAS.
SELLERS WILL PROVIDE
BUYER WITH A COPY OF ALL PHASE I ESAS AND PHASE II ESAS PREPARED BY THE
ENVIRONMENTAL CONSULTANT IN CONNECTION WITH THIS TRANSACTION.
EACH SELLER,
BUYER AND EACH OFFICER, EMPLOYEE, REPRESENTATIVE, CONSULTANT, AND ADVISER OF
BUYER SHALL HAVE THE RIGHT TO BE PRESENT DURING ANY ENVIRONMENTAL ASSESSMENT OF
THE ASSETS, AND SHALL COMPLY WITH THE CONDITIONS SET FORTH IN THIS SECTION 6.1.
BUYER SHALL MAINTAIN, AND SHALL CAUSE ITS OFFICERS, EMPLOYEES, REPRESENTATIVES,
CONSULTANTS AND ADVISORS TO MAINTAIN, ALL INFORMATION OBTAINED BY BUYER PURSUANT
TO ANY ENVIRONMENTAL ASSESSMENT OR OTHER DUE DILIGENCE ACTIVITY AS STRICTLY
CONFIDENTIAL, UNLESS DISCLOSURE OF ANY FACTS DISCOVERED THROUGH SUCH
ENVIRONMENTAL ASSESSMENT IS REQUIRED UNDER ANY ENVIRONMENTAL LAWS.
IN THE EVENT
THAT ANY NECESSARY DISCLOSURES UNDER APPLICABLE ENVIRONMENTAL LAWS ARE REQUIRED
WITH RESPECT TO MATTERS DISCOVERED BY ANY ENVIRONMENTAL ASSESSMENT CONDUCTED BY,
FOR OR ON BEHALF OF BUYER, BUYER AGREES THAT SELLERS SHALL BE THE RESPONSIBLE
PARTIES FOR DISCLOSING SUCH MATTERS TO THE APPROPRIATE GOVERNMENTAL BODIES,
UNLESS BUYER IS REQUIRED BY APPLICABLE ENVIRONMENTAL LAWS TO MAKE SUCH
DISCLOSURE, IN WHICH CASE BUYER SHALL SO NOTIFY SELLERS AND (X) ALLOW SELLERS A
REASONABLE TIME TO MAKE SUCH DISCLOSURE IF SUCH DISCLOSURE MAY BE DELEGATED OR
(Y) CONSULT WITH SELLERS REGARDING SUCH DISCLOSURE IF SUCH DISCLOSURE MAY NOT BE
DELEGATED.
(C)
SUBJECT TO SECTIONS 6.1(A) AND (B) AND UPON
REASONABLE PRIOR NOTICE, SELLERS SHALL PERMIT BUYER GROUP TO CONSULT WITH
SELLERS' EMPLOYEES DURING REASONABLE BUSINESS HOURS (INCLUDING 7:00 A.M. TO 6:00
P.M., MONDAY THROUGH FRIDAY) AND TO CONDUCT, AT BUYER'S SOLE RISK AND EXPENSE,
ANY OTHER VISUAL INSPECTIONS OF THE FACILITIES AND TO EXAMINE THE ENVIRONMENTAL
RECORDS AT SUCH FACILITIES.
SELLERS SHALL ALSO COORDINATE WITH BUYER TO ALLOW
SITE VISITS AND INSPECTIONS AT THE FIELD SITES ON SATURDAYS TO THE REASONABLE
EXTENT SUCH ACCESS CAN BE MADE AVAILABLE.
BUYER AGREES TO PROTECT, DEFEND,
INDEMNIFY AND HOLD THE SELLER INDEMNITEES HARMLESS FROM AND AGAINST ANY AND ALL
LIABILITIES OCCURRING ON OR TO THE FACILITIES CAUSED BY THE ACTS OR OMISSIONS OF
BUYER GROUP OR ANY PERSON (OTHER THAN THE ENVIRONMENTAL CONSULTANT) ACTING ON
BUYER'S BEHALF IN CONNECTION WITH ANY DUE DILIGENCE, INCLUDING ANY SITE VISITS
AND ENVIRONMENTAL SAMPLING.
BUYER GROUP AGREES TO COMPLY FULLY WITH ALL RULES,
REGULATIONS AND INSTRUCTIONS ISSUED BY SELLERS (TO THE EXTENT REASONABLE NOTICE
THEREOF HAS BEEN GIVEN TO BUYER GROUP) REGARDING BUYER'S ACTIONS WHILE UPON,
ENTERING OR LEAVING ANY FACILITY, INCLUDING ANY INSURANCE REQUIREMENTS THAT THE
SELLER MAY IMPOSE ON CONTRACTORS AUTHORIZED TO PERFORM WORK ON ANY PROPERTY
OWNED OR OPERATED BY SELLER.
46
6.2
OPERATION OF THE BUSINESS
Between the date of this Agreement and the Closing, with respect to the Business
and Assets, unless Buyer otherwise consents in writing, each Seller shall, and
shall cause each Purchased Subsidiary to:
(A)
CONDUCT THE BUSINESS ONLY IN THE ORDINARY
COURSE OF THE BUSINESS CONSISTENT WITH PAST PRACTICES OR REASONABLE FUTURE
EXPECTATIONS;
(B)
WITHOUT