TO
CLOSING SO LONG AS SUCH DISTRIBUTIONS DO NOT CAUSE THE MEMBER EQUITY OF TARGET
TO BE BELOW $400,000 AT CLOSING.
5.4
PRESERVATION OF BUSINESS.
SELLERS WILL CAUSE TARGET TO KEEP ITS
MATERIAL BUSINESS AND PROPERTIES SUBSTANTIALLY INTACT.
5.5
ACCESS.
(A)
SUBJECT TO THE TERMS OF THE CONFIDENTIALITY AGREEMENT DATED MAY
31, 2006, EACH OF SELLERS WILL PERMIT, AND SELLERS WILL CAUSE TARGET TO PERMIT,
REPRESENTATIVES OF BUYER (INCLUDING LEGAL COUNSEL AND ACCOUNTANTS) TO HAVE
REASONABLE ACCESS TO ALL PREMISES, PROPERTIES, PERSONNEL, BOOKS, RECORDS
(INCLUDING TAX RECORDS), CONTRACTS, AND DOCUMENTS OF OR PERTAINING TO EACH OF
TARGET, AND EACH OF SELLERS WILL PROVIDE, AND WILL CAUSE TARGET TO PROVIDE, SUCH
OTHER INFORMATION REGARDING TARGET AND ITS BUSINESS AS BUYER SHALL REASONABLY
REQUEST.
(B)
BUYER WILL PROVIDE TARGET AND ITS MANAGERS AND OFFICERS REASONABLE
ACCESS TO BUYER'S REPRESENTATIVES, SUPPLIERS AND FINANCIAL INFORMATION AS IS
REASONABLY NECESSARY FOR TARGET TO: (I) APPROPRIATELY ASSESS BUYER'S ABILITY TO
SUPPORT THE GROWTH REQUIRED TO SATISFY THE TARGET AMOUNTS FOR THE EARN-OUT
PAYMENT, AND (II) THE APPLICATION OF TARGET'S ACCOUNTING PRINCIPLES TO THE
CALCULATION OF EBIT.
5.6
NOTICE OF DEVELOPMENTS.
(A)
SELLERS WILL GIVE PROMPT WRITTEN NOTICE TO BUYER OF ANY MATERIAL
ADVERSE DEVELOPMENT OR OF ANY MATERIAL ADVERSE EFFECT CAUSING A BREACH OF ANY OF
THE REPRESENTATIONS AND WARRANTIES IN SECTION 4 ABOVE.
EACH PARTY WILL GIVE
PROMPT WRITTEN NOTICE TO THE OTHERS OF ANY MATERIAL ADVERSE DEVELOPMENT CAUSING
A BREACH OF ANY OF HIS, HER, OR ITS OWN REPRESENTATIONS AND WARRANTIES IN
SECTIONS 3.1 OR 3.2 ABOVE.
NO DISCLOSURE BY ANY PARTY PURSUANT TO THIS SECTION
5.6, HOWEVER, SHALL BE DEEMED TO AMEND OR SUPPLEMENT THE DISCLOSURE SCHEDULE OR
TO PREVENT OR CURE ANY MISREPRESENTATION, BREACH OF WARRANTY, OR BREACH OF
COVENANT.
(B)
FROM THE DATE OF THIS AGREEMENT UNTIL THE CLOSING DATE, TARGET
SHALL PERIODICALLY (BUT NOT LESS FREQUENTLY THAN ONCE EVERY 30 DAYS) NOTIFY
BUYER IN WRITING OF ANY CONTRACTS AND OTHER AGREEMENTS THAT TARGET HAS ENTERED
INTO DURING SUCH
30
PERIOD WHICH WOULD BE REQUIRED TO LIST ON SECTION 4.16 OF THE DISCLOSURE
SCHEDULE HAD SUCH AGREEMENTS BEEN ENTERED INTO PRIOR TO THE DATE HEREOF.
5.7
EXCLUSIVITY.
(A)
UNTIL THE EARLIER OF DECEMBER 31, 2006 OR THE DATE ON WHICH THIS
AGREEMENT IS VALIDLY TERMINATED PURSUANT TO THE PROVISIONS OF SECTION 10, NONE
OF SELLERS WILL (AND SELLERS WILL NOT CAUSE OR PERMIT TARGET TO)
(I)
ENTER INTO ANY AGREEMENT, UNDERSTANDING OR ARRANGEMENT RELATING
TO ANY ACQUISITION PROPOSAL (AS DEFINED BELOW);
(II)
ENGAGE IN ANY DISCUSSIONS OR NEGOTIATIONS RELATING TO ANY
ACQUISITION PROPOSAL (EXCEPT TO COMMUNICATE THE EXISTENCE OF THESE PROVISIONS);
(III)
PROVIDE ANY CONFIDENTIAL INFORMATION REGARDING TARGET OR ITS
BUSINESS OR OPERATIONS TO ANY PERSON IN CONNECTION WITH DISCUSSIONS OR DUE
DILIGENCE REGARDING AN ACQUISITION PROPOSAL;
(IV)
SOLICIT OR KNOWINGLY ENCOURAGE THE SUBMISSION OF ANY ACQUISITION
PROPOSAL;
(V)
PERMIT ANY REPRESENTATIVE OF TARGET OR SELLERS TO DO ANY OF THE
FOREGOING; OR
(VI)
PARTICIPATE IN ANY DISCUSSIONS OR NEGOTIATIONS REGARDING, FURNISH
ANY INFORMATION WITH RESPECT TO, ASSIST OR PARTICIPATE