DURING THE PERIOD PRIOR TO THE CLOSING, TO THE PERSONNEL,
PROPERTIES, BOOKS, CONTRACTS, COMMITMENTS AND RECORDS AND THE TRANSFERRED REAL
PROPERTY (EXCLUDING ANY CONFIDENTIAL PERSONNEL RECORDS) RELATING TO THE
BUSINESS; PROVIDED, HOWEVER, THAT SUCH ACCESS DOES NOT UNREASONABLY DISRUPT THE
NORMAL OPERATIONS OF SELLER, THE SELLER SUBSIDIARIES OR THE BUSINESS.
SUCH
ACCESS EXCLUDES ANY RIGHT OR PERMISSION TO DISTURB SURFACE OR SUBSURFACE
CONDITIONS AT THE TRANSFERRED REAL PROPERTY OR TO PERFORM ANY SAMPLING OR
TESTING OF ANY TRANSFERRED ASSETS OR THE SOIL, SUBSURFACE STRATA, SURFACE WATER,
GROUNDWATER, SEDIMENTS OR AMBIENT AIR AT, ON, IN OR UNDER THE TRANSFERRED ASSETS
(INCLUDING THE TRANSFERRED REAL PROPERTY) (INCLUDING, FOR EXAMPLE, THE
PREPARATION OF ANY PHASE II ENVIRONMENTAL ASSESSMENTS). NOTWITHSTANDING THE
FOREGOING, SELLER AND EACH OF THE SELLER SUBSIDIARIES NEED NOT DISCLOSE TO
PURCHASER (I) ANY DOCUMENT OR INFORMATION THAT IS CONFIDENTIAL PURSUANT TO, OR
THE DISCLOSURE OF WHICH WOULD, AS DETERMINED BY SELLER'S COUNSEL, BE REASONABLY
LIKELY TO RESULT IN A VIOLATION OF, APPLICABLE LAW OR PURSUANT TO THE TERMS OF A
CONFIDENTIALITY AGREEMENT WITH A THIRD PARTY OR (II) SUCH PORTIONS OF DOCUMENTS
OR INFORMATION RELATING TO MATTERS THAT ARE HIGHLY SENSITIVE IF THE EXCHANGE OF
SUCH DOCUMENTS (OR PORTIONS THEREOF) OR INFORMATION WOULD, AS DETERMINED BY
SELLER'S COUNSEL, BE REASONABLY LIKELY TO VIOLATE ANY ATTORNEY-CLIENT PRIVILEGE
OF SELLER OR SUCH SELLER SUBSIDIARIES.
IF ANY MATERIAL IS WITHHELD BY SELLER OR
ANY SELLER SUBSIDIARY PURSUANT TO THE IMMEDIATELY PRECEDING SENTENCE, SELLER
SHALL INFORM PURCHASER AS TO THE GENERAL NATURE OF WHAT IS BEING WITHHELD.
SELLER AND EACH SELLER SUBSIDIARY MAY REDACT SUCH PORTIONS OF ITS BOOKS AND
RECORDS THAT DO NOT RELATE TO THE TRANSFERRED ASSETS, THE ASSUMED LIABILITIES OR
THE BUSINESS.
(B) UPDATE OF SELLER DISCLOSURE LETTER.
(I) PRIOR TO THE CLOSING DATE, SELLER MAY, AT ITS SOLE OPTION, UPDATE THE SELLER
DISCLOSURE LETTER WITH ADDITIONAL DISCLOSURES THAT HAVE ARISEN SINCE THE DATE OF
THIS AGREEMENT.
IN THE EVENT THAT SELLER CHOOSES TO EXERCISE SUCH OPTION,
SELLER SHALL PROVIDE
28
SUCH ADDITIONAL DISCLOSURES TO PURCHASER BY WRITTEN NOTICE IN ACCORDANCE WITH
SECTION 10.05 NO LATER THAN SEVEN CALENDAR DAYS PRIOR TO THE CLOSING DATE.
(II) UPON RECEIPT OF WRITTEN NOTICE, PURCHASER SHALL HAVE UNTIL FIVE BUSINESS
DAYS AFTER RECEIPT OF SUCH NOTICE TO TERMINATE THIS AGREEMENT PURSUANT TO
SECTION 8.01(A)(VI) BY DELIVERING WRITTEN NOTICE THEREOF TO SELLER IN ACCORDANCE
WITH SECTION 10.05.
IN THE EVENT THAT PURCHASER DOES NOT EXERCISE SUCH
TERMINATION RIGHT, THE ADDITIONAL DISCLOSURES DELIVERED BY SELLER SHALL BE
DEEMED TO BE PART OF THE SELLER DISCLOSURE LETTER AS DELIVERED TO PURCHASER ON
THE DATE OF THIS AGREEMENT FOR ALL PURPOSES OF THIS AGREEMENT, INCLUDING THIS
ARTICLE V.
(III) IN FURTHERANCE OF THE FOREGOING, EACH PARTY ACKNOWLEDGES THAT, EXCEPT AS
SET FORTH IN THIS SECTION 5.02, THE EXERCISE, OR FAILURE TO EXERCISE, BY EITHER
PARTY OF ANY RIGHT, POWER OR PRIVILEGE PURSUANT TO THIS SECTION 5.02 SHALL NOT
OPERATE AS A WAIVER OF ANY OTHER RIGHT, POWER OR PRIVILEGE OF SUCH PARTY UNDER
THIS AGREEMENT.
SECTION 5.03.
Confidentiality.