OPERATING RESULTS OF THE COMPANY,
(III) TO COMPLY WITH ITS OBLIGATIONS UNDER THE FINANCING COMMITMENTS AND (IV) TO
ENFORCE ITS RIGHTS UNDER THE FINANCING COMMITMENTS.
THE COMPANY SHALL GIVE THE
ESOP PROMPT NOTICE UPON BECOMING AWARE OF ANY MATERIAL BREACH BY ANY PARTY OF
THE FINANCING COMMITMENTS OR ANY TERMINATION OF THE FINANCING COMMITMENTS.
UPON
REASONABLE REQUEST, THE COMPANY SHALL INFORM THE ESOP IN REASONABLE DETAIL OF
THE STATUS OF ITS EFFORTS TO ARRANGE THE FINANCING AND SHALL NOT PERMIT ANY
AMENDMENT OR MODIFICATION TO BE MADE TO, OR ANY WAIVER OF ANY MATERIAL PROVISION
OR REMEDY UNDER, THE DEBT COMMITMENT LETTER IF SUCH AMENDMENT, MODIFICATION,
WAIVER OR REMEDY REDUCES THE AGGREGATE AMOUNT OF THE FINANCING, OR AMENDS THE
CONDITIONS TO THE DRAWDOWN OF THE FINANCING OR ANY OTHER TERMS THEREOF IN ANY
RESPECT THAT COULD BE REASONABLY EXPECTED TO AFFECT THE AVAILABILITY OF THE
FINANCING OR DELAY THE CLOSING, IN EACH CASE, IN ANY MATERIAL RESPECT.
IN THE
EVENT THAT THE COMPANY BECOMES AWARE OF ANY EVENT OR CIRCUMSTANCE THAT MAKES
PROCUREMENT OF ANY PORTION OF THE FINANCING UNLIKELY TO OCCUR IN THE MANNER OR
FROM THE SOURCES
44
SUBSTANTIALLY CONSISTENT WITH THE FINANCING COMMITMENTS, THE COMPANY SHALL
PROMPTLY NOTIFY THE ESOP AND SHALL USE REASONABLE BEST EFFORTS TO ARRANGE ANY
SUCH PORTION FROM ALTERNATIVE SOURCES.
(B)
THE ESOP WILL AND WILL CAUSE ITS REPRESENTATIVES TO, AT THE
COMPANY'S SOLE EXPENSE, COOPERATE REASONABLY WITH THE COMPANY AND ITS AUTHORIZED
REPRESENTATIVES IN CONNECTION WITH THE ARRANGEMENT, NEGOTIATION AND CLOSING OF
THE FINANCING AND THE ISSUANCE OF THE SENIOR NOTES (AS DEFINED IN THE DEBT
COMMITMENT LETTERS), INCLUDING (I) PARTICIPATION IN A REASONABLE NUMBER OF
MEETINGS ON REASONABLE ADVANCE NOTICE, (II) FURNISHING INFORMATION (INCLUDING
ANY FINANCIAL STATEMENTS) REASONABLY REQUIRED TO BE INCLUDED IN THE PREPARATION
OF OFFERING MEMORANDA, PRIVATE PLACEMENT MEMORANDA, PROSPECTUSES AND SIMILAR
DOCUMENTS, AND (III) COOPERATION AND ASSISTANCE IN RESPECT OF THE PREPARATION,
NEGOTIATION, EXECUTION AND CLOSING OF ANY UNDERWRITING OR PLACEMENT AGREEMENTS,
INDENTURES, CREDIT AGREEMENTS, PLEDGE AND SECURITY DOCUMENTS, OTHER DEFINITIVE
FINANCING DOCUMENTS; PROVIDED, THAT, WITHOUT LIMITING THE OBLIGATIONS OF THE
ESOP UNDER THIS SECTION 5.11(B), THE ESOP SHALL NOT BE REQUIRED TO BECOME
SUBJECT TO ANY OBLIGATIONS RELATING TO SUCH ACTIVITIES PRIOR TO THE CLOSING; AND
PROVIDED, FURTHER, THAT ANY INFORMATION PROVIDED TO THE COMPANY PURSUANT TO THIS
SECTION 5.11(B) SHALL BE SUBJECT TO THE APPLICABLE CONFIDENTIALITY AGREEMENT
OTHER THAN INFORMATION INCLUDED IN ANY OFFERING MEMORANDA, PRIVATE PLACEMENT
MEMORANDA, PROSPECTUSES AND SIMILAR DOCUMENTS.
SECTION 5.12
SPECIFIED DIVESTITURES. THE COMPANY SHALL, AND/OR SHALL
CAUSE ONE OR MORE OF ITS SUBSIDIARIES, TO: (A) PROMPTLY AFTER THE DATE HEREOF,
USE COMMERCIALLY REASONABLE EFFORTS (AT THE COMPANY'S SOLE EXPENSE) TO COMMENCE
A PROCESS BY WHICH THE COMPANY WILL OR WILL CAUSE ONE OR MORE OF ITS
SUBSIDIARIES TO SELL ALL OF THE ASSETS OR EQUITY OR OTHER OWNERSHIP INTERESTS
OWNED OR HELD BY THE COMPANY AND/OR ANY OF ITS SUBSIDIARIES IN THE BUSINESSES
IDENTIFIED ON SECTION 5.12 OF THE COMPANY DISCLOSURE SCHEDULE (THE
"DIVESTITURES" AND EACH A "DIVESTITURE"), (B) COORDINATE