the
date of this Agreement until the Closing Date, Kerr and Purchaser, on the one
hand, and Seller, on the other hand, agree not to make any public announcement
or other disclosure concerning this Agreement or the transactions contemplated
herein without obtaining the prior consent of the other Party as to form,
content and timing (such consent not to be unreasonably withheld); provided,
however, that the foregoing shall not restrict (a) any Party (or Parent) from
making any public announcement or disclosure as may be required by applicable
Law (including the rules of any stock exchange or other self-regulated body) on
advice of a nationally recognized securities law firm that such Party is
reasonably obliged to make public announcements or disclosure or (b) Seller from
informing its employees and agents about this Agreement and the transactions
contemplated hereby, provided that Kerr and Purchaser shall be permitted
reasonable opportunity to comment upon the initial proposed communication to
Seller's employees and agents before release.
5.6
ACCESS TO INFORMATION; CONFIDENTIALITY.
(A)
FROM AND AFTER THE DATE OF THIS AGREEMENT
UNTIL THE CLOSING DATE, UPON REASONABLE NOTICE AND SUBJECT TO APPLICABLE LAW
RELATING TO THE EXCHANGE OF INFORMATION AND TO
36
CONFIDENTIALITY OBLIGATIONS OF SELLER ENTERED INTO PRIOR TO THE DATE HEREOF,
SELLER SHALL AFFORD TO PURCHASER'S REPRESENTATIVES ACCESS DURING NORMAL BUSINESS
HOURS TO THE EMPLOYEES OF SELLER AND TO SUCH PROPERTIES, BOOKS, COMPUTER
SYSTEMS, RECORDS, CONTRACTS, COMMITMENTS AND OTHER INFORMATION OF SELLER
RELATING TO THE BUSINESS AS PURCHASER MAY REASONABLY REQUEST, BUT EXCLUDING
BOOKS, COMPUTER SYSTEMS, RECORDS, CONTRACTS, COMMITMENTS AND INFORMATION
PRIMARILY RELATED TO THE SALE OF THE BUSINESS, THE EXCLUDED ASSETS OR THE
RETAINED LIABILITIES.
IN THE EVENT THAT PURCHASER'S DUE DILIGENCE REVEALS ANY
CONDITION OF THE REAL PROPERTY OR THE PREMISES DEMISED UNDER THE REAL PROPERTY
LEASES THAT IN PURCHASER'S JUDGMENT REQUIRES DISCLOSURE TO ANY GOVERNMENTAL
AUTHORITY, PURCHASER SHALL IMMEDIATELY NOTIFY SELLER THEREOF.
IN SUCH EVENT,
SELLER, AND NOT PURCHASER OR ANY PERSON ACTING ON PURCHASER'S BEHALF, SHALL MAKE
SUCH DISCLOSURES TO THE EXTENT SELLER REASONABLY DEEMS APPROPRIATE.
NOTWITHSTANDING THE FOREGOING, PURCHASER MAY DISCLOSE MATTERS CONCERNING THE
REAL PROPERTY TO A GOVERNMENTAL AUTHORITY ON WRITTEN ADVICE OF A
NATIONALLY-RECOGNIZED LAW FIRM THAT PURCHASER IS REASONABLY OBLIGED TO MAKE SUCH
DISCLOSURE IF PURCHASER GIVES SELLER NOT LESS THAN TEN (10) DAYS PRIOR WRITTEN
NOTICE OF THE PROPOSED DISCLOSURE, TOGETHER WITH A COPY OF SUCH WRITTEN ADVICE.
(B)
PURCHASER ACKNOWLEDGES THAT THE INFORMATION
PROVIDED TO PURCHASER AND ITS REPRESENTATIVES IN CONNECTION WITH THE ACQUISITION
AND THIS AGREEMENT IS SUBJECT TO, AND PURCHASER SHALL, AND SHALL CAUSE ITS
REPRESENTATIVES TO, FULLY COMPLY WITH THE PROVISIONS OF, THAT CERTAIN
CONFIDENTIALITY AGREEMENT, DATED AS OF FEBRUARY 6, 2003, BETWEEN PURCHASER AND
SELLER (THE "CONFIDENTIALITY AGREEMENT"), THE TERMS OF WHICH ARE INCORPORATED
HEREIN BY THIS REFERENCE.
NOTWITHSTANDING THE FOREGOING, FOLLOWING THE CLOSING
DATE, ANY INFORMATION WITH RESPECT TO THE BUSINESS THAT IS INCLUDED IN THE
PURCHASED ASSETS SHALL NOT BE SUBJECT TO THE CONFIDENTIALITY AGREEMENT.
(C)
FROM AND AFTER THE CLOSING DATE, PARENT,
SELLER AND ANY