CONSIDERATION TO BE RECEIVED IN THE EXCHANGE ARE
FAIR FROM A FINANCIAL POINT OF VIEW. THE OPINIONS WERE DELIVERED SOLELY FOR THE
USE AND BENEFIT OF THE BOARD OF DIRECTORS OF PARENT, THE MANAGING MEMBER OF
BUYER AND THE BOARD OF REPRESENTATIVES OF TWE AND MAY NOT BE RELIED UPON BY
SELLER OR ANY THIRD PARTY OR USED FOR ANY OTHER PURPOSE WITHOUT THE PRIOR
APPROVAL OF THE FINANCIAL ADVISORS, WHICH APPROVAL SHALL NOT BE IMPLIED BY
INCLUSION OF THIS REPRESENTATION IN THE AGREEMENT.
SECTION 4.28
[SECTION 4.29] NO OTHER REPRESENTATIONS OR WARRANTIES.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE IV,
NEITHER BUYER NOR ANY OTHER PERSON MAKES ANY OTHER EXPRESS OR IMPLIED
REPRESENTATION OR WARRANTY ON BEHALF OF BUYER.
ARTICLE V
COVENANTS
SECTION 5.1
ACCESS AND INFORMATION.
(A)
FROM THE DATE HEREOF UNTIL THE CLOSING (AND, WITH RESPECT TO ANY
DISPUTED MCE SYSTEM, UNTIL THE EXPIRATION OF THE MCE PERIOD), SUBJECT TO
APPLICABLE LAWS, SELLER SHALL (I) AFFORD BUYER AND ITS AUTHORIZED
REPRESENTATIVES REASONABLE ACCESS, DURING REGULAR BUSINESS HOURS, UPON
REASONABLE ADVANCE NOTICE, TO THE EMPLOYEES, EACH SPECIFIED BUSINESS, THE
FRIENDCO BUSINESS, ASSETS THAT WILL BE TRANSFERRED ASSETS AS OF THE CLOSING AND
THE FRIENDCO TRANSFERRED ASSETS, (II) FURNISH, OR CAUSE TO BE FURNISHED, TO
BUYER ANY FINANCIAL AND OPERATING DATA AND OTHER INFORMATION WITH RESPECT TO
EACH SPECIFIED BUSINESS OR IN FURTHERANCE OF THE TRANSACTION OR THE EXCHANGE AS
BUYER FROM TIME TO TIME REASONABLY REQUESTS, INCLUDING, SUBJECT TO SECTION 5.11,
BY PROVIDING TO BUYER OR ITS ACCOUNTANTS SUFFICIENT INFORMATION (A) FOR THE
PREPARATION OF THE PRO-FORMA BALANCE SHEET AND STATEMENTS OF INCOME,
STOCKHOLDERS' EQUITY AND CASH FLOWS FOR THE PARENT BUSINESS (IN EACH CASE, IF
REQUESTED, ASSUMING THE FRIENDCO TRANSACTION AND/OR THE EXCHANGE HAVE OCCURRED)
AND (B) REGARDING COMPLIANCE BY SELLER AND ITS AFFILIATES WITH THE REQUIREMENTS
OF THE SOA WITH RESPECT TO THE BUSINESS, AND (III) INSTRUCT THE EMPLOYEES, AND
ITS COUNSEL AND FINANCIAL ADVISORS TO COOPERATE WITH BUYER IN ITS INVESTIGATION
OF EACH SPECIFIED BUSINESS AND THE FRIENDCO BUSINESS, INCLUDING INSTRUCTING ITS
ACCOUNTANTS TO GIVE BUYER ACCESS TO THEIR WORK PAPERS; PROVIDED, HOWEVER, THAT
IN NO EVENT SHALL BUYER HAVE ACCESS TO ANY INFORMATION THAT, BASED ON ADVICE OF
SELLER'S COUNSEL, WOULD (A) REASONABLY BE EXPECTED TO CREATE LIABILITY UNDER
APPLICABLE LAWS, INCLUDING U.S. ANTITRUST LAWS, OR WAIVE ANY MATERIAL LEGAL
PRIVILEGE (PROVIDED, THAT IN SUCH LATTER EVENT BUYER AND SELLER SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO COOPERATE TO PERMIT DISCLOSURE OF SUCH
INFORMATION IN A MANNER CONSISTENT WITH THE PRESERVATION OF SUCH LEGAL
PRIVILEGE), (B) RESULT IN THE DISCLOSURE OF ANY TRADE SECRETS OF THIRD PARTIES
OR
90
(C) VIOLATE ANY OBLIGATION OF SELLER WITH RESPECT TO CONFIDENTIALITY SO LONG AS,
WITH RESPECT TO CONFIDENTIALITY, TO THE EXTENT SPECIFICALLY REQUESTED BY BUYER,
SELLER HAS MADE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN A WAIVER REGARDING THE
POSSIBLE DISCLOSURE FROM THE THIRD PARTY TO WHOM IT OWES AN OBLIGATION OF
CONFIDENTIALITY; IT BEING UNDERSTOOD THAT BUYER SHALL NOT CONDUCT ANY
ENVIRONMENTAL SAMPLING WITHOUT