that provides that Purchaser shall be liable for any breaches of the
confidentiality agreements by the potential purchasers.
Purchaser shall keep
records of all Information provided to potential purchasers.
(B)
ALL INFORMATION RECEIVED BY PURCHASER AND GIVEN BY OR ON BEHALF OF
THE SELLER ENTITIES AND THE CONVEYED ENTITIES IN CONNECTION WITH THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED HEREBY WILL BE HELD BY PURCHASER AND ITS
AFFILIATES AND REPRESENTATIVES AS "EVALUATION MATERIAL", AS DEFINED IN, AND
PURSUANT TO THE TERMS OF, THE CONFIDENTIALITY AGREEMENT.
(C)
IF, AT ANY TIME PRIOR TO THE CLOSING, PURCHASER BECOMES AWARE OF
ANY FACT OR CIRCUMSTANCE RELATING TO ANY PURCHASED ASSET, SELLER ENTITY OR ANY
CONVEYED ENTITY THAT WOULD MAKE THE REPRESENTATIONS AND WARRANTIES OF SELLER
CONTAINED IN THIS AGREEMENT UNTRUE OR MISLEADING, PURCHASER AGREES TO PROMPTLY
NOTIFY SELLER OF SUCH FACT OR CIRCUMSTANCE.
(D)
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT, WITHOUT THE PRIOR
WRITTEN CONSENT OF SELLER, WHICH CONSENT MAY BE GRANTED OR WITHHELD IN SELLER'S
SOLE AND ABSOLUTE DISCRETION, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO
GRANT PURCHASER THE RIGHT TO PERFORM ANY PHASE I, PHASE II OR OTHER
ENVIRONMENTAL TESTING ON ANY OF THE PROPERTIES OF THE ASSET SELLING ENTITIES OR
THE CONVEYED ENTITIES.
SECTION 5.2
CONDUCT OF BUSINESS.
(A) FROM
AND AFTER THE DATE HEREOF TO THE EARLIER OF (A) THE TERMINATION OF THIS
AGREEMENT AND (B) THE CLOSING DATE, SELLER SHALL USE COMMERCIALLY REASONABLE
EFFORTS AND SHALL DIRECT THE OFFICERS OF EACH SELLER ENTITY AND EACH CONVEYED
ENTITY TO CONDUCT THE BUSINESS IN THE ORDINARY COURSE CONSISTENT WITH PAST
PRACTICE IN ALL MATERIAL RESPECTS.
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, FROM AND AFTER THE DATE HEREOF TO THE EARLIER OF (A) THE TERMINATION
OF THIS AGREEMENT AND (B) THE CLOSING DATE EXCEPT (I) AS OTHERWISE CONTEMPLATED,
PERMITTED OR REQUIRED BY THE TRANSACTION DOCUMENTS, (II) AS PURCHASER SHALL
OTHERWISE CONSENT IN WRITING (FOR PURPOSES OF THIS SECTION 5.2(A), SUCH CONSENT
MAY BE GIVEN BY E-MAIL AND SHALL BE EFFECTIVE UPON RECEIPT BY SELLER), WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED, (III) AS
CONTEMPLATED BY SCHEDULE 5.2(A) OF THE SELLER DISCLOSURE LETTER AND (IV) AS MAY
BE NECESSARY, IN THE REASONABLE JUDGMENT OF SELLER, TO REMOVE ANY EXCLUDED
ASSETS FROM ANY ASSET SELLING ENTITY, SELLER COVENANTS AND AGREES THAT IT SHALL
NOT, AND SHALL DIRECT THE OFFICERS OF EACH SELLER ENTITY AND EACH CONVEYED
ENTITY NOT TO:
(I)
SELL, LEASE, LICENSE, ABANDON OR OTHERWISE
DISPOSE OF ANY MATERIAL PURCHASED ASSETS, EXCEPT (A) IN THE ORDINARY COURSE OF
THE BUSINESS OR (B) TO ANOTHER CONVEYED ENTITY OR ASSET SELLING ENTITY;
(II)
OTHER THAN IN THE ORDINARY COURSE OF THE BUSINESS
CONSISTENT WITH PAST PRACTICE, AS REQUIRED BY APPLICABLE LAW OR PURSUANT TO THE
TERMS OF ANY BENEFIT PLAN AS
40
IN EFFECT ON THE DATE HEREOF (OR AS MODIFIED TO CAUSE IT TO COMPLY WITH
APPLICABLE LAW), (A) MATERIALLY INCREASE OR MATERIALLY ENHANCE THE COMPENSATION
OR BENEFITS OF THE BUSINESS EMPLOYEES, (B) GRANT OR ENHANCE ANY