RECEIVE AN UNSOLICITED BONA FIDE THIRD-PARTY OFFER TO SELL OR
OTHERWISE ACQUIRE THE TRACE COMMON STOCK OR ALL OR SUBSTANTIALLY ALL OF TRACE'S
ASSETS, THE BUYER SHALL BE GIVEN PROMPT NOTICE OF SUCH OFFER AND THE SELLERS
SHALL NOTIFY THE PERSON MAKING SUCH OFFER OF THE PROVISIONS OF THIS SECTION 5.5.
(B)
THE OBLIGATION UNDER THIS SECTION 5.5 WILL
TERMINATE, AND THE SELLERS, THE CORPORATIONS AND THEIR REPRESENTATIVES WILL BE
ABLE TO SOLICIT ANY OFFER OF ANY KIND FOR SOME OR ALL OF THE TRACE COMMON STOCK
OR SOME OR ALL OF THE ASSETS OF THE CORPORATIONS WITHOUT ANY RESTRICTION
WHATSOEVER, UPON THE EARLIER OF:
(I)
RECEIPT BY THE SELLERS OF A PROPOSAL BY
THE BUYER TO REDUCE THE AMOUNT OF THE PURCHASE PRICE OR OTHERWISE ALTER THE
CONSIDERATION THAT COMPRISES THE PURCHASE PRICE;
(II)
THE BUYER'S FAILURE TO DELIVER TO THE
SELLERS, ON OR PRIOR TO THE DATE THAT IS 30 DAYS FROM THE DATE OF THE AGREEMENT,
WRITTEN NOTIFICATION THAT BUYER'S DUE DILIGENCE IS COMPLETED; OR
(III)
THE BUYER'S FAILURE TO DELIVER TO THE
SELLERS, ON OR PRIOR TO THE DATE THAT IS 60 DAYS FROM THE DATE OF THE AGREEMENT,
WRITTEN EVIDENCE THAT THE BUYER HAS OBTAINED FINANCING COMMITMENTS THAT WILL
ALLOW IT TO PAY THE PURCHASE PRICE WHICH COMMITMENTS ARE NOT SUBJECT TO
CONDITIONS OTHER THAN THOSE SET FORTH IN SECTION 7.1.
SECTION 5.6
ACCESS AND INVESTIGATION.
(A)
BETWEEN THE DATE OF THIS AGREEMENT AND THE
CLOSING DATE, AND UPON REASONABLE ADVANCE NOTICE RECEIVED FROM THE BUYER, THE
CORPORATIONS SHALL (AND SELLERS SHALL CAUSE THE CORPORATIONS TO) (A) AFFORD THE
BUYER AND ITS REPRESENTATIVES AND PROSPECTIVE LENDERS AND THEIR REPRESENTATIVES
(COLLECTIVELY, "BUYER GROUP") FULL AND FREE ACCESS, DURING REGULAR BUSINESS
HOURS, TO THE CORPORATIONS' PERSONNEL, PROPERTIES (INCLUDING NON-DESTRUCTIVE
SUBSURFACE TESTING), CONTRACTS, GOVERNMENTAL AUTHORIZATIONS, BOOKS AND RECORDS
AND OTHER DOCUMENTS AND DATA, SUCH RIGHTS OF ACCESS TO BE EXERCISED IN A MANNER
THAT DOES NOT UNREASONABLY INTERFERE WITH THE
44
OPERATIONS OF THE CORPORATIONS; THE PERFORMANCE OF THE CORPORATIONS' OR THE
SELLERS' DUTIES UNDER THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY,
(B) FURNISH BUYER GROUP WITH COPIES OF ALL SUCH CONTRACTS, GOVERNMENTAL
AUTHORIZATIONS, BOOKS AND RECORDS AND OTHER EXISTING DOCUMENTS AND DATA AS BUYER
GROUP MAY REASONABLY REQUEST; (C) FURNISH BUYER GROUP WITH SUCH ADDITIONAL
FINANCIAL, OPERATING AND OTHER RELEVANT DATA AND INFORMATION REGARDING THE
CORPORATIONS AS BUYER MAY REASONABLY REQUEST; AND (D) OTHERWISE COOPERATE AND
ASSIST, TO THE EXTENT REASONABLY REQUESTED BY BUYER, WITH BUYER'S INVESTIGATION
OF THE PROPERTIES, ASSETS AND FINANCIAL POSITION RELATED TO THE CORPORATIONS,
EXCEPT WHERE THE SELLERS OR THE CORPORATIONS ARE CONTRACTUALLY PRECLUDED BY AN
AGREEMENT PRE-EXISTING THE DATE OF THIS AGREEMENT (OR ARE OTHERWISE PRECLUDED BY
APPLICABLE LEGAL REQUIREMENT)
FROM MAKING SUCH MATERIAL AVAILABLE OR TAKING ANY
SUCH ACTION.
NOTWITHSTANDING THESE REQUIREMENTS, THE CORPORATIONS (AND THE
SELLERS) SHALL HAVE NO OBLIGATION TO CREATE ANY NEW INFORMATION FOR THE BUYER;
(B)
BUYER ACKNOWLEDGES AND AGREES THAT ALL SUCH
MATERIAL AND INFORMATION PROVIDED TO BUYER GROUP SHALL CONSTITUTE CONFIDENTIAL
INFORMATION (UNLESS SUCH