ASSUMED,
GUARANTEED OR OTHERWISE BECOME LIABLE FOR ANY INDEBTEDNESS OR OTHER LIABILITIES
OTHER THAN TRADE PAYABLES OR BORROWINGS UNDER EXISTING LINES OF CREDIT, IN EACH
CASE, IN THE ORDINARY COURSE OF BUSINESS; UNDERTAKEN ANY OTHER TRANSACTION
OUTSIDE THE ORDINARY COURSE OF BUSINESS THAT WOULD REASONABLY BE EXPECTED TO
IMPAIR, DELAY OR PREVENT BUYER'S ABILITY TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED HEREBY, INCLUDING ITS ABILITY TO OBTAIN THE FINANCING FOR PAYMENT
OF THE PURCHASE PRICE; OR SUFFERED A BUYER MATERIAL ADVERSE EFFECT.
6.10
ENVIRONMENTAL AUDITS.
SCHEDULE 6.10 ATTACHED HERETO
IS A TRUE AND COMPLETE LIST OF ALL PHASE 1 ENVIRONMENTAL AUDITS AND OTHER
ENVIRONMENTAL AUDITS OR REPORTS OBTAINED BY BUYER OR ITS REPRESENTATIVES WITH
RESPECT TO ANY OF THE PROPERTIES.
BUYER HAS FURNISHED TRUE AND COMPLETE COPIES
OF SUCH AUDITS AND REPORTS TO SELLER AND ALL MATTERS DISCLOSED BY SUCH AUDITS
AND REPORTS SHALL BE DEEMED FOR ALL PURPOSES OF THIS AGREEMENT AS HAVING BEEN
DISCLOSED BY SELLER PURSUANT TO SECTION 5.13.
28
6.11
NON-RELIANCE.
BUYER ACKNOWLEDGES THAT IT, TOGETHER
WITH ITS ADVISORS, HAS MADE ITS OWN INVESTIGATION OF COMPANY, COMPANY
SUBSIDIARIES AND THEIR RESPECTIVE BUSINESSES AND ASSETS.
BUYER IS NOT RELYING
ON ANY REPRESENTATIONS, WARRANTIES OR STATEMENTS OTHER THAN THOSE EXPRESSLY SET
FORTH IN THIS AGREEMENT AND IS NOT RELYING ON IMPLIED WARRANTIES (WHETHER OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE), OR UPON ANY
REPRESENTATION OR WARRANTY WHATSOEVER AS TO THE PROSPECTS (FINANCIAL OR
OTHERWISE), OR THE VIABILITY OR LIKELIHOOD OF SUCCESS, OF THE BUSINESSES OF
COMPANY AND COMPANY SUBSIDIARIES AS CONDUCTED AFTER THE CLOSING DATE, OR UPON
THE INFORMATION (INCLUDING ANY FORECASTS OR PROJECTIONS) CONTAINED IN THE
CONFIDENTIAL MEMORANDUM FURNISHED BY GOLDMAN, SACHS & CO. ON BEHALF OF SELLER,
OR IN ANY OTHER MATERIALS PROVIDED BY SELLER, COMPANY, THEIR AFFILIATES OR ANY
OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISERS OR
REPRESENTATIVES, INCLUDING ANY DATA ROOM OR MANAGEMENT PRESENTATIONS, AND NONE
OF SELLER, COMPANY, THEIR AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ADVISERS OR REPRESENTATIVES SHALL HAVE ANY LIABILITY
RESULTING THEREFROM.
ARTICLE 7
COVENANTS OF THE PARTIES UNTIL CLOSING
7.1
CONDUCT OF BUSINESS PENDING CLOSING.
EXCEPT
AS SET FORTH IN SECTION 7.1 OF THE DISCLOSURE SCHEDULE OR AS OTHERWISE PROVIDED
IN THIS AGREEMENT, BETWEEN THE DATE HEREOF AND THE CLOSING, SELLER SHALL CAUSE
COMPANY AND EACH COMPANY SUBSIDIARY TO:
(A)
OPERATE ITS RESPECTIVE BUSINESS IN THE
ORDINARY COURSE CONSISTENT WITH PAST PRACTICE IN ACCORDANCE WITH APPLICABLE
LAWS, UNLESS SELLER OBTAINS THE PRIOR WRITTEN CONSENT OF BUYER, WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED;
(B)
USE ITS REASONABLE BEST EFFORTS TO PRESERVE
ITS BUSINESS ORGANIZATION AND GOODWILL, KEEP AVAILABLE THE SERVICES OF ITS
OFFICERS AND EMPLOYEES, AND MAINTAIN SATISFACTORY RELATIONSHIPS WITH VENDORS,
CUSTOMERS AND OTHERS HAVING BUSINESS RELATIONSHIPS WITH IT; AND
(C)
NOTIFY BUYER OF ANY GOVERNMENTAL OR THIRD
PARTY COMPLAINT, INVESTIGATIONS OR HEARINGS INVOLVING COMPANY OR A COMPANY
SUBSIDIARY (OR WRITTEN COMMUNICATIONS INDICATING THAT THE SAME ARE CONTEMPLATED)
IF SUCH COMPLAINT, INVESTIGATION OR HEARING WOULD HAVE A COMPANY MATERIAL
ADVERSE EFFECT.
7.2