CLOSING, ALL CONSENTS REQUIRED IN
CONJUNCTION WITH THE REAL ESTATE AGREEMENTS AT NO COST TO BUYER OR SHALL DELIVER
THE BENEFIT OF THE REAL ESTATE AGREEMENTS TO BUYER AT THE CLOSING AND REMAIN
RESPONSIBLE FOR SUCH CONSENTS (AND ANY RISKS ASSOCIATED WITH THE FAILURE TO
OBTAIN SUCH CONSENTS) POST-CLOSING (AND SHALL INDEMNIFY BUYER THEREFROM).
SECTION 5.4
REASONABLE EFFORTS
(A)
EACH MEMBER OF THE SELLER GROUP AND BUYER SHALL COOPERATE, AND USE ITS
REASONABLE COMMERCIAL EFFORTS TO TAKE, OR CAUSE TO BE TAKEN, ALL ACTIONS, AND TO
DO, OR CAUSE TO BE DONE, ALL THINGS NECESSARY, PROPER OR ADVISABLE UNDER
APPLICABLE LAW TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(B)
AS SOON AS PRACTICABLE AFTER THE DATE HEREOF, SELLER SHALL, AT ITS EXPENSE
(EXCEPT AS SET FORTH BELOW), CAUSE TO BE PREPARED ALL FINANCIAL INFORMATION OF
THE BUSINESS REQUIRED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
(THE "SEC") TO BE FILED BY BUYER FOLLOWING THE CLOSING AS PART OF A CURRENT
REPORT ON
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FORM 8-K (THE "FORM 8-K") (INCLUDING THE PREPARATION OF AUDITED FINANCIAL
STATEMENTS, IF NECESSARY) AND THE PRO FORMA FINANCIAL INFORMATION OF THE
BUSINESS WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (THE
"AUDITED AND OTHER REQUIRED FINANCIAL INFORMATION").
THE COST OF PREPARATION OF
ANY REQUIRED AUDITED FINANCIAL STATEMENTS SHALL BE BORNE BY THE SELLER;
PROVIDED, HOWEVER, THAT TO THE EXTENT THE COST OF PREPARATION OF SUCH AUDITED
FINANCIAL STATEMENTS EXCEEDS $500,000, SELLER AND BUYER SHALL SPLIT ANY SUCH
EXCESS COSTS UP TO $1,500,000, SUCH THAT BUYER SHALL BE RESPONSIBLE FOR UP TO A
MAXIMUM OF $500,000 IN COSTS ASSOCIATED WITH SUCH AUDIT.
ANY COSTS BEYOND
$1,500,000 SHALL BE BORNE BY SELLER.
SELLER HEREBY REPRESENTS THAT ALL THE
INFORMATION NECESSARY TO PERMIT BUYER TO COMPLY WITH ITS OBLIGATIONS PURSUANT TO
FORM 8-K WILL BE MADE AVAILABLE IN A TIMELY MANNER TO ENABLE BUYER TO SATISFY
ITS PUBLIC REPORTING OBLIGATIONS UNDER APPLICABLE LAW.
(C)
BUYER AND SELLER SHALL COOPERATE AND USE GOOD FAITH EFFORTS TO PROMPTLY
OBTAIN A WAIVER FROM THE SEC LIMITING THE TIME PERIOD AND SCOPE OF THE AUDIT SET
FORTH IN SUBSECTION (B) ABOVE. BUYER AND SELLER SHALL AGREE UPON THE FORM OF
REQUEST TO BE SUBMITTED TO THE SEC.
(D)
BUYER AND ITS ADVISORS WILL APPRISE SELLER OF ANY CONCERNS REGARDING THE
CONDUCT, SCOPE OR OUTCOME OF THE AUDIT REQUIRED PURSUANT TO SUBSECTION (B) ABOVE
THAT THEY HAVE AS OF THE DATE HEREOF WITHIN FIVE BUSINESS DAYS OF THE DATE
HEREOF.
SECTION 5.5
PUBLIC ANNOUNCEMENTS
Following the execution hereof, each of Buyer and Seller will consult with each
other regarding the language of and issue a press release or press releases
disclosing such action.
Thereafter, prior to the Closing, except as otherwise
agreed to by the parties, no party shall issue any report, statement or press
release or otherwise make any public statements with respect to this Agreement
and the transactions contemplated hereby, except (i) to the extent reasonably
required in connection with the operation of the Business or (ii) as