EARTHLINK NOR ANY OF ITS SUBSIDIARIES OR AFFILIATES, NOR ANY
OTHER PERSON MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY ON BEHALF
OF EARTHLINK WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
ARTICLE IV
CERTAIN COVENANTS AND AGREEMENTS OF SKT PARTIES AND EARTHLINK
4.1
ACCESS AND INFORMATION.
4.1.1
ACCESS TO BOOK AND RECORDS.
PRIOR
TO THE CLOSING, THE SKT PARTIES AND EARTHLINK SHALL EACH PERMIT THE OTHER AND
THE OTHER'S REPRESENTATIVES TO HAVE REASONABLE ACCESS TO ITS BOOKS AND RECORDS,
AND ITS OFFICERS AND EMPLOYEES AND THE OFFICERS AND EMPLOYEES OF ITS
SUBSIDIARIES, IN EACH CASE (I) DURING REGULAR BUSINESS HOURS AND UPON REASONABLE
ADVANCE NOTICE TO THE OTHER, (II) TO THE EXTENT THAT SUCH ACCESS DOES NOT
UNREASONABLY INTERFERE WITH THE BUSINESS OF THE SKT PARTIES OR THEIR RESPECTIVE
SUBSIDIARIES OR EARTHLINK OR ITS SUBSIDIARIES, AS THE CASE MAY BE AND (III)
SOLELY FOR THE PURPOSE OF AND TO THE EXTENT REASONABLY NECESSARY TO EVALUATE THE
EARTHLINK ASSETS OR THE OTHER PARTY'S ABILITY TO PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT OR THE ANCILLARY AGREEMENTS; PROVIDED THAT ANY SUCH
REPRESENTATIVES SHALL COMPLY WITH THE CONFIDENTIALITY OBLIGATIONS CONTAINED
HEREIN AND IN THE NONDISCLOSURE AGREEMENT AND CONFIDENTIALITY AGREEMENT, AS
APPLICABLE; AND PROVIDED, FURTHER, THAT THE FOREGOING SHALL NOT (I) REQUIRE THE
SKT PARTIES OR EARTHLINK TO PERMIT ANY INSPECTION, OR TO DISCLOSE ANY
INFORMATION, THAT IN ITS REASONABLE JUDGMENT WOULD RESULT IN THE DISCLOSURE OF
ANY TRADE SECRETS OF THIRD PARTIES OR TRADE SECRETS OF SKT OR EARTHLINK
UNRELATED TO THE TRANSACTIONS
15
CONTEMPLATED BY THIS AGREEMENT OR ANY ANCILLARY AGREEMENT OR VIOLATE ANY OF
SKT'S, SKTI'S, EARTHLINK'S, OR ANY OF THEIR RESPECTIVE SUBSIDIARIES' LEGAL
OBLIGATIONS OR OBLIGATIONS WITH RESPECT TO CONFIDENTIALITY, PROVIDED THAT SKT,
SKTI OR EARTHLINK, AS THE CASE MAY BE, SHALL HAVE (X) USED REASONABLE BEST
EFFORTS TO OBTAIN THE CONSENT OF SUCH THIRD PARTY TO SUCH INSPECTION OR
DISCLOSURE, AND (Y) INFORMED THE OTHER PARTY IN WRITING THAT NOTWITHSTANDING
SUCH EFFORTS, IT IS PROHIBITED FROM DISCLOSING SUCH INFORMATION (SPECIFYING THE
NATURE OF SUCH NON-DISCLOSED INFORMATION) OR (II) REQUIRE ANY DISCLOSURE BY SUCH
SKT PARTY, EARTHLINK, OR ANY OF THEIR RESPECTIVE SUBSIDIARIES THAT WOULD BE
REASONABLY LIKELY TO, AS A RESULT OF SUCH DISCLOSURE, HAVE THE EFFECT OF CAUSING
THE WAIVER OF ANY ATTORNEY-CLIENT PRIVILEGE; PROVIDED, THAT SKT, SKTI OR
EARTHLINK, AS THE CASE MAY BE, SHALL HAVE USED ITS COMMERCIALLY REASONABLE
EFFORTS TO EFFECT DISCLOSURE WITHOUT THE WAIVER OF ATTORNEY-CLIENT PRIVILEGE.
4.1.2
RETURN OF INFORMATION.
IN THE
EVENT OF THE TERMINATION OF THIS AGREEMENT, THE SKT PARTIES AND EARTHLINK, EACH
AT ITS OWN EXPENSE, SHALL PROMPTLY DELIVER (WITHOUT RETAINING ANY COPIES
THEREOF) TO EARTHLINK OR THE SKT PARTIES, AS THE CASE MAY BE, OR CONFIRM TO THE
OTHER IN WRITING THAT IT HAS DESTROYED, ALL INFORMATION FURNISHED TO IT OR ITS
REPRESENTATIVES BY THE OTHER OR ANY OF THE OTHER'S SUBSIDIARIES OR ANY OF THEIR
RESPECTIVE AGENTS, EMPLOYEES OR REPRESENTATIVES AS A RESULT HEREOF OR IN
CONNECTION HEREWITH, WHETHER SO OBTAINED BEFORE OR AFTER THE EXECUTION