INFORMATION IS EXCLUDED BY THE TERMS OF THE DEFINITION
OF CONFIDENTIAL INFORMATION);
(C)
IN ADDITION, BUYER UPON REASONABLE ADVANCE
NOTICE RECEIVED FROM THE BUYER SHALL HAVE THE RIGHT TO HAVE THE REAL PROPERTY
AND TANGIBLE PERSONAL PROPERTY INSPECTED BY BUYER GROUP, AT BUYER'S SOLE COST
AND EXPENSE, DURING REGULAR BUSINESS HOURS, FOR PURPOSES OF DETERMINING THE
PHYSICAL CONDITION AND LEGAL CHARACTERISTICS OF THE REAL PROPERTY AND TANGIBLE
PERSONAL PROPERTY AND SUCH RIGHTS OF ACCESS SHALL BE EXERCISED IN A MANNER THAT
DOES NOT UNREASONABLY INTERFERE WITH THE OPERATIONS OF THE CORPORATIONS, THE
PERFORMANCE OF THE CORPORATIONS' OR THE SELLERS' DUTIES UNDER THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT THAT WHERE THE SELLERS OR THE
CORPORATIONS ARE CONTRACTUALLY PRECLUDED BY AN AGREEMENT PRE-EXISTING THE DATE
OF THIS AGREEMENT (OR ARE OTHERWISE PRECLUDED BY LAW) FROM TAKING ANY SUCH
ACTION THEY SHALL NOT BE OBLIGATED TO PROVIDE SUCH ACCESS; AND
(D)
IN THE EVENT SUBSURFACE TESTING IS
RECOMMENDED BY ANY OF BUYER GROUP, BUYER SHALL BE PERMITTED TO HAVE THE SAME
PERFORMED, AT ITS OWN COST ONLY AFTER AGREEING TO INDEMNIFY THE CORPORATIONS
FROM ALL ADVERSE CONSEQUENCES ARISING FROM SUCH TESTING, OBTAINING ADEQUATE
INSURANCE, NECESSARY PERMITS AND AFTER RECEIVING CONSENT FROM THE CORPORATIONS,
WHICH SHALL NOT BE UNREASONABLY WITHHELD, AND THE LAND OWNER.
BEFORE CONDUCTING
SUCH ACTIVITIES, BUYER SHALL ENTER INTO A SITE ACCESS AGREEMENT WITH THE OWNER
OF THE REAL PROPERTY WITH RESPECT TO SUCH TESTING.
SECTION 5.7
CONFIDENTIAL INFORMATION OF
CORPORATIONS AND SELLERS.
(A)
UNTIL THE CLOSING (EXCEPT IN RESPECT OF
CONFIDENTIAL INFORMATION REGARDING THE SELLERS, IN WHICH CASE SUCH OBLIGATION
SHALL NOT TERMINATE), ALL CONFIDENTIAL INFORMATION, AS HEREINAFTER DEFINED,
ACQUIRED BY BUYER GROUP WITH RESPECT TO THE CORPORATIONS OR THE SELLERS SHALL
BE: (A) MAINTAINED IN STRICT CONFIDENCE; (B) USED ONLY FOR THE PURPOSE OF AND IN
CONNECTION WITH EVALUATING THE TRANSACTION CONTEMPLATED HEREIN; AND
(C) DISCLOSED ONLY TO EMPLOYEES AND DULY AUTHORIZED AGENTS AND REPRESENTATIVES
OF BUYER GROUP WHO HAVE BEEN INFORMED OF THE OBLIGATIONS OF THE BUYER UNDER THIS
SECTION 5.7, HAVE A NEED TO KNOW THE INFORMATION IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AGREE TO KEEP SUCH INFORMATION
CONFIDENTIAL, AND AGREE TO BE BOUND BY THE TERMS OF THIS PROVISION TO THE SAME
EXTENT
45
AS IF THEY WERE PARTIES HERETO.
THE BUYER SHALL KEEP A RECORD OF SUCH
INDIVIDUALS AND SHALL CONFIRM THEIR COMPLIANCE WITH THE PROVISIONS OF THIS
OBLIGATION.
(B)
IN THE EVENT THAT ANY OF BUYER GROUP IS
REQUESTED OR REQUIRED (BY ORAL QUESTION OR REQUEST FOR INFORMATION OR DOCUMENTS
IN ANY LEGAL PROCEEDING, INTERROGATORY, SUBPOENA, CIVIL INVESTIGATIVE DEMAND, OR
SIMILAR PROCESS) TO DISCLOSE ANY CONFIDENTIAL INFORMATION, THEN THE BUYER WILL
NOTIFY THE SELLERS PROMPTLY OF THE REQUEST OR REQUIREMENT SO THAT THE SELLERS
MAY SEEK AN APPROPRIATE PROTECTIVE ORDER OR WAIVE COMPLIANCE WITH THE PROVISIONS
OF THIS SECTION 5.7.
IF, IN THE ABSENCE OF A PROTECTIVE ORDER OR THE RECEIPT OF
A WAIVER HEREUNDER, ANY OF BUYER GROUP IS, ON THE ADVICE OF COUNSEL, COMPELLED
TO DISCLOSE