THE PURCHASED BUSINESS OR THE ABILITY OF
39
SUCH PARTY TO CONSUMMATE THE TRANSACTIONS OR (II) IF SUCH PROCEEDING WERE
DETERMINED ADVERSELY TO SUCH PARTY, COULD MATERIALLY AND ADVERSELY AFFECT SUCH
PARTY.
5.5
NO NEGOTIATION.
FROM THE DATE OF THIS AGREEMENT THROUGH THE
CLOSING DATE, OR UNLESS THIS AGREEMENT IS EARLIER TERMINATED PURSUANT TO ARTICLE
X, SELLER SHALL NOT, AND SHALL NOT AUTHORIZE OR ENCOURAGE ITS AFFILIATES AND
REPRESENTATIVES, TO DIRECTLY OR INDIRECTLY (A) SOLICIT, INITIATE OR ENCOURAGE
ANY INQUIRIES OR PROPOSALS FROM, (B) NEGOTIATE WITH, OR (C) PROVIDE ANY
NON-PUBLIC INFORMATION TO ANY PERSON (OTHER THAN BUYER AND ITS AFFILIATES AND
REPRESENTATIVES) RELATING TO ANY TRANSACTION INVOLVING THE SALE OF ALL OR A
SUBSTANTIAL PORTION OF THE PURCHASED BUSINESS, WHETHER AFFECTED BY SALE OF
ASSETS, SALE OF EQUITY INTERESTS, MERGER OR OTHERWISE.
IN THE EVENT THAT SELLER
OR ANY OF ITS AFFILIATES OR REPRESENTATIVES RECEIVES AN UNSOLICITED INQUIRY,
PROPOSAL OR OFFER FOR SUCH A TRANSACTION OR OBTAINS INFORMATION THAT ANY SUCH
INQUIRY, PROPOSAL OR OFFER IS LIKELY TO BE MADE, SELLER WILL (I) PROMPTLY
PROVIDE BUYER WITH WRITTEN NOTICE THEREOF, INCLUDING THE IDENTITY OF THE
PROSPECTIVE PURCHASER OR SOLICITING PARTY, (II) FURNISH BUYER WITH A COPY OF ANY
PROPOSED RESPONSE TO SUCH PURCHASER OR SOLICITING PARTY PRIOR TO DELIVERY
THEREOF AND (III) RESPOND TO SUCH INQUIRY, PROPOSAL OR OFFER BY INDICATING, IN
SUBSTANCE AND EFFECT, THAT SELLER IS A PARTY TO A BINDING AGREEMENT AND
REFERENCING ITS OBLIGATIONS UNDER THIS SECTION 5.5.
5.6
BEST EFFORTS.
BETWEEN THE DATE OF THIS AGREEMENT THROUGH THE
EARLIER OF THE CLOSING DATE OR THE VALID TERMINATION OF THIS AGREEMENT IN
ACCORDANCE WITH ARTICLE X, EACH OF THE PARTIES HERETO SHALL USE ITS BEST EFFORTS
TO CAUSE THE CONDITIONS IN SECTIONS 6.1 AND 6.2 TO BE SATISFIED.
5.7
PAYMENT OF LIABILITIES.
BETWEEN THE DATE OF THIS AGREEMENT AND
THE CLOSING DATE, SELLER SHALL PAY OR OTHERWISE SATISFY IN THE ORDINARY COURSE
OF BUSINESS ALL OF ITS LIABILITIES AND OBLIGATIONS RELATED TO OR INCURRED IN
CONNECTION WITH THE PURCHASED BUSINESS (OTHER THAN EXCLUDED LIABILITIES).
THE
PARTIES ACKNOWLEDGE THAT IT MAY NOT BE PRACTICABLE TO COMPLY OR ATTEMPT TO
COMPLY WITH THE PROCEDURES OF ANY BULK SALES LAWS OR SIMILAR LAW OF ANY OR ALL
OF THE STATES IN WHICH THE PURCHASED ASSETS ARE SITUATED OR OF ANY OTHER STATE
WHICH MAY BE ASSERTED TO BE APPLICABLE TO THE TRANSACTIONS.
THE PARTIES HEREBY
AGREE TO WAIVE COMPLIANCE WITH ANY SUCH LAWS.
5.8
PREPARATION OF ADDITIONAL PURCHASED BUSINESS FINANCIAL STATEMENTS.
IN CONNECTION WITH THE CONSUMMATION OF THE TRANSACTIONS, SELLER SHALL PREPARE
AND DELIVER TO BUYER, AND SHALL TAKE SUCH STEPS AS MAY BE REASONABLY REQUESTED
BY BUYER TO OBTAIN THE ASSISTANCE OF SELLER'S INDEPENDENT ACCOUNTANTS, GRANT
THORNTON LLP, IN THE PREPARATION OF, AN UNAUDITED BALANCE SHEET OF THE PURCHASED
BUSINESS AS OF MARCH 31, 2007 AND THE RELATED UNAUDITED STATEMENTS OF OPERATIONS
AND CASH FLOWS FOR THE FISCAL QUARTER THEN ENDED.
FROM THE DATE OF THIS
AGREEMENT THROUGH THE EARLIER OF THE CLOSING DATE OR THE