OR MATERIAL
LAW, STATUTE, ORDINANCE, RULE OR REGULATION APPLICABLE TO PARENT OR PURCHASER OR
THEIR RESPECTIVE PROPERTIES OR ASSETS, OTHER THAN, IN THE CASE OF CLAUSE (II),
(A) THE COMPANY'S SECOND AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF
MARCH 15, 2002, AS AMENDED, BY AND AMONG THE COMPANY, ITS SUBSIDIARIES, THE
LENDERS PARTY THERETO AND BNP PARIBAS AS AGENT (THE "EXISTING PARENT CREDIT
AGREEMENT") AND (B) ANY SUCH CONFLICTS, VIOLATIONS, DEFAULTS, RIGHTS OR LIENS
THAT INDIVIDUALLY OR IN THE AGGREGATE WOULD NOT (X) IMPAIR IN ANY MATERIAL
RESPECT THE ABILITY OF PARENT AND PURCHASER TO PERFORM THEIR RESPECTIVE
OBLIGATIONS UNDER THIS AGREEMENT OR (Y) PREVENT OR IMPEDE THE CONSUMMATION OF
ANY OF THE TRANSACTIONS.
NO CONSENT, APPROVAL, ORDER OR AUTHORIZATION OF, OR
REGISTRATION, DECLARATION OR FILING WITH, ANY GOVERNMENTAL ENTITY OR ANY OTHER
PERSON IS REQUIRED BY PARENT OR PURCHASER IN CONNECTION WITH THE EXECUTION AND
DELIVERY OF THIS AGREEMENT OR THE CONSUMMATION BY PARENT OR PURCHASER, AS THE
CASE MAY BE, OF ANY OF THE TRANSACTIONS, EXCEPT (A)
PURSUANT TO THE SECURITIES
ACT AND THE EXCHANGE ACT, (B) THE FILING OF THE ARTICLES OF MERGER PURSUANT TO
THE PBCL, (C) SUCH FILINGS AND APPROVALS AS MAY BE REQUIRED UNDER THE "BLUE
SKY," TAKEOVER OR SECURITIES LAWS OF VARIOUS STATES, (D) THE CONSENT OF THE
LENDERS UNDER THE EXISTING PARENT CREDIT AGREEMENT OR (E) WHERE THE FAILURE TO
OBTAIN ANY SUCH CONSENT, APPROVAL, AUTHORIZATION OR PERMIT, OR TO MAKE ANY SUCH
FILING OR NOTIFICATION, WOULD NOT PREVENT OR DELAY CONSUMMATION OF THE OFFER OR
THE MERGER OR WOULD NOT OTHERWISE PREVENT PARENT FROM PERFORMING ITS OBLIGATIONS
UNDER THIS AGREEMENT.
SECTION 4.5.
SCHEDULE TO; OFFER DOCUMENTS.
NEITHER THE SCHEDULE TO, THE OFFER DOCUMENTS NOR ANY INFORMATION SUPPLIED BY
PARENT OR PURCHASER IN WRITING FOR INCLUSION IN THE SCHEDULE 14D-9 SHALL, AT THE
RESPECTIVE TIMES THE SCHEDULE 14D-9, THE SCHEDULE TO, THE OFFER DOCUMENTS OR ANY
AMENDMENTS OR SUPPLEMENTS THERETO ARE FILED WITH THE SEC OR ARE FIRST PUBLISHED,
SENT OR GIVEN TO SHAREHOLDERS OF THE COMPANY, AS THE CASE MAY BE, CONTAIN ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT REQUIRED
TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN
LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY ARE MADE, NOT MISLEADING.
THE
SCHEDULE TO AND THE OFFER DOCUMENTS WILL COMPLY AS TO FORM IN ALL MATERIAL
RESPECTS WITH THE REQUIREMENTS OF THE EXCHANGE ACT AND THE RULES AND REGULATIONS
THEREUNDER.
NOTWITHSTANDING THE FOREGOING, NO REPRESENTATION OR WARRANTY IS
MADE BY PARENT OR PURCHASER WITH RESPECT TO STATEMENTS MADE OR INCORPORATED BY
REFERENCE THEREIN BASED ON INFORMATION SUPPLIED BY THE COMPANY SPECIFICALLY FOR
INCLUSION OR INCORPORATION BY REFERENCE THEREIN.
36
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.1.
CONDUCT OF BUSINESS OF THE
COMPANY PENDING THE MERGER.
THE COMPANY HEREBY COVENANTS AND AGREES THAT, PRIOR
TO THE EFFECTIVE TIME, UNLESS OTHERWISE EXPRESSLY CONTEMPLATED BY THIS AGREEMENT
OR CONSENTED TO IN WRITING BY PARENT, IT WILL AND WILL