TERMINATION, CANCELLATION, IMPOSITION OF FEES OR PENALTIES UNDER, ANY DEBT,
NOTE, BOND, LEASE, MORTGAGE, INDENTURE, LICENSE, OBLIGATION, CONTRACT,
COMMITMENT, FRANCHISE, PERMIT, INSTRUMENT OR OTHER AGREEMENT OR OBLIGATION TO
WHICH THE PURCHASER IS A PARTY, WHICH CONFLICT OR DEFAULT WOULD HAVE AN ADVERSE
EFFECT ON THE ABILITY OF THE PURCHASER TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT; OR (C) VIOLATE ANY LAW OF ANY AUTHORITY, WHICH
VIOLATION WOULD HAVE AN ADVERSE EFFECT ON THE ABILITY OF THE PURCHASER TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
3.4
CONSENTS AND APPROVALS. NO CONSENT OF ANY PERSON, INCLUDING ANY
AUTHORITY, IS REQUIRED IN CONNECTION WITH THE EXECUTION, DELIVERY OR PERFORMANCE
OF THIS AGREEMENT BY THE PURCHASER OR THE CONSUMMATION BY THE PURCHASER OF THE
TRANSACTIONS CONTEMPLATED HEREIN.
3.5
BROKERS. NEITHER THE PURCHASER NOR ANY OF ITS MANAGERS, DIRECTORS,
OFFICERS, MEMBERS, AGENTS OR EMPLOYEES HAVE EMPLOYED ANY BROKER, FINDER, OR
FINANCIAL ADVISOR OR INCURRED ANY LIABILITY FOR ANY BROKERAGE FEE OR COMMISSION,
FINDER'S FEE OR FINANCIAL ADVISORY FEE, IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY, NOR IS THERE ANY BASIS KNOWN TO THE PURCHASER FOR ANY SUCH
FEE OR COMMISSION TO BE CLAIMED BY ANY SUCH PERSON.
3.6
FINANCIAL ABILITY TO PERFORM. THE PURCHASER HAS SUFFICIENT FUNDS
TO PAY ALL AMOUNTS REQUIRED TO BE PAID HEREUNDER AT THE CLOSING AND TO TAKE SUCH
OTHER ACTIONS AS MAY BE REQUIRED BY IT TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY.
ARTICLE 4
COVENANTS AND OTHER AGREEMENTS
4.1
CONDUCT OF BUSINESS. THE COMPANY WILL MAINTAIN ITS ASSETS AND
PROPERTIES AND CARRY ON ITS BUSINESS AND OPERATIONS ONLY IN ORDINARY COURSE IN
SUBSTANTIALLY THE SAME MANNER AS PLANNED AND PREVIOUSLY OPERATED; AND THE
COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO PRESERVE INTACT ITS BUSINESS
ORGANIZATIONS, EXISTING BUSINESS RELATIONSHIPS (INCLUDING WITHOUT LIMITATION ITS
RELATIONSHIPS WITH
13
OFFICERS, EMPLOYEES, DEALERS, DISTRIBUTORS, INDEPENDENT CONTRACTORS, CUSTOMERS
AND SUPPLIERS), GOODWILL AND GOING CONCERN VALUE. EXCEPT AS SPECIFICALLY SET
FORTH ON THE DISCLOSURE SCHEDULE, AND EXCEPT IN THE ORDINARY COURSE OF BUSINESS
AND CONSISTENT WITH PAST PRACTICE, AND EXCEPT AS MAY BE EXPRESSLY AUTHORIZED BY
THIS AGREEMENT OR OTHERWISE AGREED IN WRITING BY THE PURCHASER, FROM THE DATE
HEREOF UNTIL THE CLOSING, THE COMPANY WILL NOT:
(A)
AMEND ITS ARTICLES OF INCORPORATION OR BYLAWS;
(B)
BORROW OR AGREE TO BORROW ANY FUNDS;
(C)
PAY, DISCHARGE OR SATISFY ANY CLAIMS, LIABILITIES OR OBLIGATIONS;
(D)
PERMIT OR ALLOW ANY OF ITS PROPERTIES OR ASSETS MATERIAL TO THE
OPERATION OF ITS BUSINESSES TO BE SUBJECTED TO ANY MORTGAGE, PLEDGE, LIEN,
SECURITY INTEREST, ENCUMBRANCE, RESTRICTION OR CHARGE OF ANY KIND, EXCEPT LIENS
THAT RELATE TO CURRENT TAXES AND ASSESSMENTS NOT YET DUE AND PAYABLE OR THAT ARE
BEING CONTESTED IN GOOD FAITH;
(E)
WRITE DOWN THE VALUE OF ANY INVENTORY OR WRITE OFF AS
UNCOLLECTABLE ANY NOTES OR ACCOUNTS RECEIVABLE OR ANY TRADE ACCOUNTS OR TRADE
NOTES;
(F)
CANCEL OR AMEND ANY DEBTS, WAIVE ANY CLAIMS OR RIGHTS OR SELL,
TRANSFER OR OTHERWISE DISPOSE OF ANY PROPERTIES OR ASSETS, OTHER THAN FOR SUCH
DEBTS, CLAIMS, RIGHTS, PROPERTIES