Common use of Merger Agreement Provisions Clause in Contracts

Merger Agreement Provisions. (a) Each of the parties hereto that is also a party to the Merger Agreement shall provide Onyx with as much prior written notice as is reasonably practicable (which, if the circumstances permit, shall be not less than two Business Days’ notice) of any proposed agreement or consent by any or all of them to any modifications of the terms and conditions of, or proposed delivery by both or either of them of any consent or waiver or any exercise of any right of termination under, the Merger Agreement. Each of the parties hereto that is also a party to the Merger Agreement shall (1) allow Onyx to participate directly in any negotiations or discussions relating to any such proposed modification, consent, waiver or termination unless such action would not reasonably be expected to have a material adverse effect on the Retained Business, Retained Assets or Retained Liabilities and (2) keep Onyx reasonably informed of the status and any developments with respect to any such proposed modification, consent, waiver or termination. None of the parties hereto that is also a party to the Merger Agreement shall, without the prior written consent of Onyx, terminate the Merger Agreement pursuant to Section 8.1(a) thereof or agree to any modification of any of the terms or conditions of, or give any consent or waiver under, any provision of the Merger Agreement if such modification, consent or waiver would reasonably be expected to have an adverse effect on the Retained Business, Retained Assets or Retained Liabilities. SV shall not, without the prior written consent of Onyx, terminate the Merger Agreement pursuant to Section 8.1(e)(2)(B). (b) Prior to the Closing, each party hereto will promptly notify each other party hereto in the event that such party becomes aware of (1) the occurrence or nonoccurrence of any event the occurrence or nonoccurrence of which could reasonably be expected to cause (i) any representation or warranty of any party to the Merger Agreement to be untrue or inaccurate or (ii) any covenant, condition or agreement of any party to the Merger Agreement contained in the Merger Agreement to not be complied with or satisfied and (2) any failure of any party to the Merger Agreement to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under the Merger Agreement. (c) During the period from the date of this Separation Agreement through the earlier of the termination of this Separation Agreement pursuant to its terms and the Closing Date, the Company shall, and shall cause each Company Subsidiary to, subject to reasonable restrictions imposed from time to time upon advice of counsel respecting applicable Law or the Confidentiality Agreement, afford representatives of Onyx and its Designated Affiliates, following notice from Onyx to the Company in accordance with this Section 6.4(c), reasonable access during normal business hours to all properties, offices, books, contracts, commitments and records and such financial (including all working papers) and operating data of the Company and the Company Subsidiaries and all other information concerning its business, properties, personnel, vendors, landlords/sublandlords, tenants, licensees and franchisees as Onyx or its Designated Affiliates may reasonably request, including access to distribution centers and stores to conduct field audits at Onyx’s expense, and shall instruct the employees, counsel, financial advisors and auditors of the Company to cooperate with Onyx in connection with the foregoing. Onyx shall schedule and coordinate all inspections with the Company and shall give the Company at least two Business Days prior notice thereof, setting forth the inspection or materials that Onyx or its representatives intend to conduct. The Company shall be entitled to have representatives present at all times during any such inspection. Notwithstanding the foregoing, neither Onyx nor any of its representatives shall (i) contact or have any discussions with any of the Company’s employees below the level of division vice president (or, if no such position exists with respect to any particular area of the Company, division leader or its equivalent), agents, or representatives, unless in each case Onyx obtains the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed, (ii) contact or have any discussions with any of the vendors, licensees or franchisees of the Company or the Company Subsidiaries, unless in each case Onyx obtains the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed, (iii) contact or have any discussions with any of the landlord/sublandlords, tenants/subtenants of the Company or the Company Subsidiaries if, within two Business Days after receipt of notice from Onyx of its intention to have such a discussion, the Company shall raise a reasonable objection to such contact or discussion, (iv) damage any property or any portion thereof, or (v) perform any onsite procedure or investigation (including any onsite environmental investigation or study) that involves physical disturbance or damage to any property or any portion thereof. Within ten (10) Business Days after the date hereof, the Company shall appoint a representative for the purpose of coordination of inspections and providing approvals of contact with employees, vendors, landlords/sublandlords, tenants/subtenants, licensees or franchisees of the Company or its Subsidiaries. Notwithstanding the foregoing, neither the Company nor any Company Subsidiary shall be required to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of the Company or any Company Subsidiary or contravene any Law or binding agreement entered into prior to the date of this Separation Agreement. All information obtained pursuant to this Section 6.4(c) shall continue to be governed by the Confidentiality Agreement. (d) Onyx shall use its commercially reasonable efforts to obtain the Financing pursuant to the terms and conditions set forth in the Financing Commitment. Onyx shall notify the Company if at any time prior to the Closing Date the Financing Commitment shall expire or be terminated, modified or amended for any reason. The Company shall (i) provide and shall cause the Company Subsidiaries to, and use commercially reasonable efforts to cause the respective officers, employees and Representatives, including legal and accounting, of the Company and its Subsidiaries to provide, all cooperation reasonably requested by Onyx in connection with any debt financing that Onyx may determine to arrange (any such debt financing, a “Future Debt Financing”), including providing such access and documentation and taking such action as is customary for transactions such as the Financing or Future Debt Financing and facilitating the production of any due diligence items that the prospective lenders may reasonably request, including current Phase I Environmental Site Assessments, field audits, appraisals and title insurance with respect to the real property, and (ii) satisfy the conditions in the Financing Commitment or Future Debt Financing that require action by the Company. Onyx shall promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket third party costs incurred by the Company or any of the Company Subsidiaries in connection with such cooperation. (e) During the period from the date of this Separation Agreement through the earlier of the termination of this Separation Agreement pursuant to its terms and the Closing Date, Onyx shall, and shall cause each Subsidiary of Onyx to, subject to reasonable restrictions imposed from time to time upon advice of counsel respecting applicable Law or the Confidentiality Agreement, afford representatives of the Company and its Subsidiaries such information as they may reasonably require concerning the capitalization, liquidity and financial resources of Onyx and its Subsidiaries after giving effect to the transactions contemplated by this Separation Agreement. Notwithstanding the foregoing, neither Onyx nor any Onyx Subsidiary shall be required to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of Onyx or any Subsidiary of Onyx or contravene any Law or binding agreement entered into prior to the date of this Separation Agreement. The Company shall hold, and shall cause its officers, employees, agents, consultants, advisors and other Representatives to hold, in strict confidence, unless compelled to disclose by judicial or administrative process or at the direction of any Authority or, in the opinion of its counsel, by other requirements of Law, all non-public information concerning Onyx furnished it pursuant to this Section 6.4(e) or its Representatives or otherwise in its possession (except to the extent that such information can be shown to have been (x) in the public domain through no fault of the party to which it was furnished or (y) later lawfully acquired on a nonconfidential basis from other sources by the party to which it was furnished), and the Company shall not, without the prior written consent of the party that furnished such information, release or disclose such information to any other person, except its auditors, attorneys, financial advisors, financing sources, bankers and other consultants, advisors and other representatives who have a need to know such information and who agree to be bound by the provisions of this sentence. The Company shall be deemed to have satisfied its obligation to hold confidential information concerning or supplied by any other party if it exercises the same care as it takes to preserve confidentiality for its own similar confidential information.

Merger Agreement Provisions. (a) Each of the parties hereto that is also a party to the Merger Agreement shall provide Onyx with as much prior written notice as is reasonably practicable (which, if the circumstances permit, shall be not less than two Business Days’ ' notice) of any proposed agreement or consent by any or all of them to any modifications of the terms and conditions of, or proposed delivery by both or either of them of any consent or waiver or any exercise of any right of termination under, the Merger Agreement. Each of the parties hereto that is also a party to the Merger Agreement shall (1) allow Onyx to participate directly in any negotiations or discussions relating to any such proposed modification, consent, waiver or termination unless such action would not reasonably be expected to have a material adverse effect on the Retained Business, Retained Assets or Retained Liabilities and (2) keep Onyx reasonably informed of the status and any developments with respect to any such proposed modification, consent, waiver or termination. None of the parties hereto that is also a party to the Merger Agreement shall, without the prior written consent of Onyx, terminate the Merger Agreement pursuant to Section 8.1(a) thereof or agree to any modification of any of the terms or conditions of, or give any consent or waiver under, any provision of the Merger Agreement if such modification, consent or waiver would reasonably be expected to have an adverse effect on the Retained Business, Retained Assets or Retained Liabilities. SV shall not, without the prior written consent of Onyx, terminate the Merger Agreement pursuant to Section 8.1(e)(2)(B). (b) Prior to the Closing, each party hereto will promptly notify each other party hereto in the event that such party becomes aware of (1) the occurrence or nonoccurrence of any event the occurrence or nonoccurrence of which could reasonably be expected to cause (i) any representation or warranty of any party to the Merger Agreement to be untrue or inaccurate or (ii) any covenant, condition or agreement of any party to the Merger Agreement contained in the Merger Agreement to not be complied with or satisfied and (2) any failure of any party to the Merger Agreement to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under the Merger Agreement. (c) During the period from the date of this Separation Agreement through the earlier of the termination of this Separation Agreement pursuant to its terms and the Closing Date, the Company shall, and shall cause each Company Subsidiary to, subject to reasonable restrictions imposed from time to time upon advice of counsel respecting applicable Law or the Confidentiality Agreement, afford representatives of Onyx and its Designated Affiliates, following notice from Onyx to the Company in accordance with this Section 6.4(c), reasonable access during normal business hours to all properties, offices, books, contracts, commitments and records and such financial (including all working papers) and operating data of the Company and the Company Subsidiaries and all other information concerning its business, properties, personnel, vendors, landlords/sublandlords, tenants, licensees and franchisees as Onyx or its Designated Affiliates may reasonably request, including access to distribution centers and stores to conduct field audits at Onyx’s 's expense, and shall instruct the employees, counsel, financial advisors and auditors of the Company to cooperate with Onyx in connection with the foregoing. Onyx shall schedule and coordinate all inspections with the Company and shall give the Company at least two Business Days prior notice thereof, setting forth the inspection or materials that Onyx or its representatives intend to conduct. The Company shall be entitled to have representatives present at all times during any such inspection. Notwithstanding the foregoing, neither Onyx nor any of its representatives shall (i) contact or have any discussions with any of the Company’s 's employees below the level of division vice president (or, if no such position exists with respect to any particular area of the Company, division leader or its equivalent), agents, or representatives, unless in each case Onyx obtains the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed, (ii) contact or have any discussions with any of the vendors, licensees or franchisees of the Company or the Company Subsidiaries, unless in each case Onyx obtains the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed, (iii) contact or have any discussions with any of the landlord/sublandlords, tenants/subtenants of the Company or the Company Subsidiaries if, within two Business Days after receipt of notice from Onyx of its intention to have such a discussion, the Company shall raise a reasonable objection to such contact or discussion, (iv) damage any property or any portion thereof, or (v) perform any onsite procedure or investigation (including any onsite environmental investigation or study) that involves physical disturbance or damage to any property or any portion thereof. Within ten (10) Business Days after the date hereof, the Company shall appoint a representative for the purpose of coordination of inspections and providing approvals of contact with employees, vendors, landlords/sublandlords, tenants/subtenants, licensees or franchisees of the Company or its Subsidiaries. Notwithstanding the foregoing, neither the Company nor any Company Subsidiary shall be required to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of the Company or any Company Subsidiary or contravene any Law or binding agreement entered into prior to the date of this Separation Agreement. All information obtained pursuant to this Section 6.4(c) shall continue to be governed by the Confidentiality Agreement. (d) Onyx shall use its commercially reasonable efforts to obtain the Financing pursuant to the terms and conditions set forth in the Financing Commitment. Onyx shall notify the Company if at any time prior to the Closing Date the Financing Commitment shall expire or be terminated, modified or amended for any reason. The Company shall (i) provide and shall cause the Company Subsidiaries to, and use commercially reasonable efforts to cause the respective officers, employees and Representatives, including legal and accounting, of the Company and its Subsidiaries to provide, all cooperation reasonably requested by Onyx in connection with any debt financing that Onyx may determine to arrange (any such debt financing, a “"Future Debt Financing”"), including providing such access and documentation and taking such action as is customary for transactions such as the Financing or Future Debt Financing and facilitating the production of any due diligence items that the prospective lenders may reasonably request, including current Phase I Environmental Site Assessments, field audits, appraisals and title insurance with respect to the real property, and (ii) satisfy the conditions in the Financing Commitment or Future Debt Financing that require action by the Company. Onyx shall promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket third party costs incurred by the Company or any of the Company Subsidiaries in connection with such cooperation. (e) During the period from the date of this Separation Agreement through the earlier of the termination of this Separation Agreement pursuant to its terms and the Closing Date, Onyx shall, and shall cause each Subsidiary of Onyx to, subject to reasonable restrictions imposed from time to time upon advice of counsel respecting applicable Law or the Confidentiality Agreement, afford representatives of the Company and its Subsidiaries such information as they may reasonably require concerning the capitalization, liquidity and financial resources of Onyx and its Subsidiaries after giving effect to the transactions contemplated by this Separation Agreement. Notwithstanding the foregoing, neither Onyx nor any Onyx Subsidiary shall be required to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of Onyx or any Subsidiary of Onyx or contravene any Law or binding agreement entered into prior to the date of this Separation Agreement. The Company shall hold, and shall cause its officers, employees, agents, consultants, advisors and other Representatives to hold, in strict confidence, unless compelled to disclose by judicial or administrative process or at the direction of any Authority or, in the opinion of its counsel, by other requirements of Law, all non-public information concerning Onyx furnished it pursuant to this Section 6.4(e) or its Representatives or otherwise in its possession (except to the extent that such information can be shown to have been (x) in the public domain through no fault of the party to which it was furnished or (y) later lawfully acquired on a nonconfidential basis from other sources by the party to which it was furnished), and the Company shall not, without the prior written consent of the party that furnished such information, release or disclose such information to any other person, except its auditors, attorneys, financial advisors, financing sources, bankers and other consultants, advisors and other representatives who have a need to know such information and who agree to be bound by the provisions of this sentence. The Company shall be deemed to have satisfied its obligation to hold confidential information concerning or supplied by any other party if it exercises the same care as it takes to preserve confidentiality for its own similar confidential information.

Merger Agreement Provisions. (a) Each of Parent and the parties hereto that is also a party to the Merger Agreement Company shall provide Onyx Newco with as much prior written notice as is reasonably practicable (which, if the circumstances permit, shall be not less than two Business Daysthree business days’ notice) of any proposed agreement or consent by any both or all either of them to any modifications of the terms and conditions of, or proposed delivery by both or either of them of any consent or waiver or any exercise of any right of termination under, the Merger Agreement. Each of Parent and the parties hereto that is also a party Company will (i) use their best efforts to the Merger Agreement shall (1) allow Onyx Newco to participate directly in any negotiations or discussions with Instinet relating to any such proposed modification, consent, waiver or termination unless such action would not reasonably be expected to have a material adverse effect on the Retained Business, Retained Assets or Retained Liabilities Newco Adverse Effect and (2ii) keep Onyx reasonably Newco informed of the status and any developments with respect to any such proposed modification, consent, waiver or termination. None of Neither Parent nor the parties hereto that is also a party to the Merger Agreement shallCompany will, without the prior written consent of OnyxNewco, terminate the Merger Agreement pursuant to Section 8.1(a) 8.1 thereof or agree to any modification of any of the terms or conditions of, or give any consent or waiver under, any provision of the Merger Agreement if such modification, consent or waiver would reasonably be expected to have a Newco Adverse Effect. Upon Newco’s request, but subject to Instinet’s willingness, Parent and the Company will enter into such modifications of the terms and conditions of, or give any consent or waiver under, the Merger Agreement relating solely to the Newco Entities, the Newco Assets, the Newco Employees, the Newco Business or the Newco Liabilities unless such action would reasonably be expected to have an adverse effect on the Retained Business, Retained Assets or Retained Liabilities. SV shall not, without the prior written consent of Onyx, terminate the Merger Agreement pursuant to Section 8.1(e)(2)(B). (b) Prior to the Closing, each party hereto will promptly notify each other party hereto in the event probability that such party becomes aware of (1) the occurrence or nonoccurrence of any event the occurrence or nonoccurrence of which could reasonably be expected to cause (i) any representation or warranty of any party to the Merger Agreement to be untrue or inaccurate or (ii) any covenant, condition or agreement of any party to the Merger Agreement contained in the Merger Agreement to not be complied with or satisfied and (2) any failure of any party to the Merger Agreement to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under the Merger Agreement. (c) During the period from the date of this Separation Agreement through the earlier of the termination of this Separation Agreement pursuant to its terms and the Closing Date, the Company shall, and shall cause each Company Subsidiary to, subject to reasonable restrictions imposed from time to time upon advice of counsel respecting applicable Law or the Confidentiality Agreement, afford representatives of Onyx and its Designated Affiliates, following notice from Onyx to the Company in accordance with this Section 6.4(c), reasonable access during normal business hours to all properties, offices, books, contracts, commitments and records and such financial (including all working papers) and operating data of the Company and the Company Subsidiaries and all other information concerning its business, properties, personnel, vendors, landlords/sublandlords, tenants, licensees and franchisees as Onyx or its Designated Affiliates may reasonably request, including access to distribution centers and stores to conduct field audits at Onyx’s expense, and shall instruct the employees, counsel, financial advisors and auditors of the Company to cooperate with Onyx in connection with the foregoing. Onyx shall schedule and coordinate all inspections with the Company and shall give the Company at least two Business Days prior notice thereof, setting forth the inspection or materials that Onyx or its representatives intend to conduct. The Company shall be entitled to have representatives present at all times during any such inspection. Notwithstanding the foregoing, neither Onyx nor any of its representatives shall (i) contact or have any discussions with any of the Company’s employees below the level of division vice president (or, if no such position exists with respect to any particular area of the Company, division leader or its equivalent), agents, or representatives, unless in each case Onyx obtains the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed, (ii) contact or have any discussions with any of the vendors, licensees or franchisees of the Company or the Company Subsidiaries, unless in each case Onyx obtains the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed, (iii) contact or have any discussions with any of the landlord/sublandlords, tenants/subtenants of the Company or the Company Subsidiaries if, within two Business Days after receipt of notice from Onyx of its intention to have such a discussion, the Company shall raise a reasonable objection to such contact or discussion, (iv) damage any property or any portion thereof, or (v) perform any onsite procedure or investigation (including any onsite environmental investigation or study) that involves physical disturbance or damage to any property or any portion thereof. Within ten (10) Business Days after the date hereof, the Company shall appoint a representative for the purpose of coordination of inspections and providing approvals of contact with employees, vendors, landlords/sublandlords, tenants/subtenants, licensees or franchisees of the Company or its Subsidiaries. Notwithstanding the foregoing, neither the Company nor any Company Subsidiary shall be required to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of the Company or any Company Subsidiary or contravene any Law or binding agreement entered into prior to the date of this Separation Agreement. All information obtained pursuant to this Section 6.4(c) shall continue to be governed by the Confidentiality Agreement. (d) Onyx shall use its commercially reasonable efforts to obtain the Financing pursuant to the terms and conditions set forth in the Financing Commitment. Onyx shall notify the Company if at any time prior to the Closing Date the Financing Commitment shall expire or be terminated, modified or amended for any reason. The Company shall (i) provide and shall cause the Company Subsidiaries to, and use commercially reasonable efforts to cause the respective officers, employees and Representatives, including legal and accounting, of the Company and its Subsidiaries to provide, all cooperation reasonably requested by Onyx in connection with any debt financing that Onyx may determine to arrange (any such debt financing, a “Future Debt Financing”), including providing such access and documentation and taking such action as is customary for transactions such as the Financing or Future Debt Financing and facilitating the production of any due diligence items that the prospective lenders may reasonably request, including current Phase I Environmental Site Assessments, field audits, appraisals and title insurance with respect to the real property, and (ii) satisfy the conditions in the Financing Commitment or Future Debt Financing that require action by the Company. Onyx shall promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket third party costs incurred by the Company or any of the Company Subsidiaries in connection with such cooperation. (e) During the period from the date of this Separation Agreement through the earlier of the termination of this Separation Agreement pursuant to its terms and the Closing Date, Onyx shall, and shall cause each Subsidiary of Onyx to, subject to reasonable restrictions imposed from time to time upon advice of counsel respecting applicable Law or the Confidentiality Agreement, afford representatives of the Company and its Subsidiaries such information as they may reasonably require concerning the capitalization, liquidity and financial resources of Onyx and its Subsidiaries after giving effect to the transactions contemplated by this Separation Agreement. Notwithstanding Agreement or the foregoing, neither Onyx nor any Onyx Subsidiary shall Merger Agreement will be required to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of Onyx or any Subsidiary of Onyx or contravene any Law or binding agreement entered into prior to the date of this Separation Agreement. The Company shall hold, and shall cause its officers, employees, agents, consultants, advisors and other Representatives to hold, in strict confidence, unless compelled to disclose by judicial or administrative process or at the direction of any Authority or, in the opinion of its counsel, by other requirements of Law, all non-public information concerning Onyx furnished it pursuant to this Section 6.4(e) or its Representatives or otherwise in its possession (except to the extent that such information can be shown to have been (x) in the public domain through no fault of the party to which it was furnished or (y) later lawfully acquired on a nonconfidential basis from other sources by the party to which it was furnished), and the Company shall not, without the prior written consent of the party that furnished such information, release or disclose such information to any other person, except its auditors, attorneys, financial advisors, financing sources, bankers and other consultants, advisors and other representatives who have a need to know such information and who agree to be bound by the provisions of this sentence. The Company shall be deemed to have satisfied its obligation to hold confidential information concerning or supplied by any other party if it exercises the same care as it takes to preserve confidentiality for its own similar confidential informationconsummated.

Merger Agreement Provisions. (a) Each of Parent and the parties hereto that is also a party to the Merger Agreement Company shall provide Onyx Newco with as much prior written notice as is reasonably practicable (which, if the circumstances permit, shall be not less than two Business Daysthree business days’ notice) of any proposed agreement or consent by any both or all either of them to any modifications of the terms and conditions of, or proposed delivery by both or either of them of any consent or waiver or any exercise of any right of termination under, the Merger Agreement. Each of Parent and the parties hereto that is also a party Company will (i) use their best efforts to the Merger Agreement shall (1) allow Onyx Newco to participate directly in any negotiations or discussions with Instinet relating to any such proposed modification, consent, waiver or termination unless such action would not reasonably be expected to have a material adverse effect on the Retained Business, Retained Assets or Retained Liabilities Newco Adverse Effect and (2ii) keep Onyx reasonably Newco informed of the status and any developments with respect to any such proposed modification, consent, waiver or termination. None of Neither Parent nor the parties hereto that is also a party to the Merger Agreement shallCompany will, without the prior written consent of OnyxNewco, terminate the Merger Agreement pursuant to Section 8.1(a) 8.1 thereof or agree to any modification of any of the terms or conditions of, or give any consent or waiver under, any provision of the Merger Agreement if such modification, consent or waiver would reasonably be expected to have a Newco Adverse Effect. Upon Newco’s request, but subject to Instinet’s willingness, Parent and the Company will enter into such modifications of the terms and conditions of, or give any consent or waiver under, the Merger Agreement relating solely to the Newco Entities, the Newco Assets, the Newco Employees, the Newco Business or the Newco Liabilities unless such action would reasonably be expected to have an adverse effect on the Retained Business, Retained Assets probability that the transactions contemplated by this Agreement or Retained Liabilities. SV shall not, without the prior written consent of Onyx, terminate the Merger Agreement pursuant to Section 8.1(e)(2)(B)will be consummated. (b) Prior to the Closing, each party hereto Newco will promptly notify each other party hereto Parent and Parent will promptly notify Newco, in the event that such party Newco or Parent, as the case may be, becomes aware of (1i) the occurrence or nonoccurrence of any event the occurrence or nonoccurrence of which could reasonably be expected to cause (ix) any representation or warranty of any party to Parent, the Company or Instinet contained in the Merger Agreement to be untrue or inaccurate or (iiy) any covenant, condition or agreement of Parent, the Company or Instinet or any party to the Merger Agreement Subsidiary of Instinet contained in the Merger Agreement to not be complied with or satisfied and (2ii) any failure of Parent, the Company, Instinet or any party to the Merger Agreement Subsidiary of Instinet to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under the Merger Agreement. (c) During Prior to the period from the date of this Separation Agreement through the earlier Closing, Parent agrees to use its reasonable best efforts to ensure that Newco and its accountants, attorneys, consultants, financing sources and other Representatives are provided access pursuant to Section 6.1 of the termination Merger Agreement. Prior to the Closing, Newco agrees that it shall, and shall cause its Affiliates to, comply with the obligations under Section 6.1 of this Separation the Merger Agreement. (d) After the Closing, Newco shall, and shall cause each Newco Entity to, as the case may be, honor the applicable obligations under Section 6.7 of the Merger Agreement pursuant with respect to its terms and the Closing DateNewco Employees. After the Closing, the Company shall, and shall cause each Company Subsidiary ECN Entity to, subject to reasonable restrictions imposed from time to time upon advice of counsel respecting as the case may be, honor the applicable Law or the Confidentiality Agreement, afford representatives of Onyx and its Designated Affiliates, following notice from Onyx to the Company in accordance with this obligations under Section 6.4(c), reasonable access during normal business hours to all properties, offices, books, contracts, commitments and records and such financial (including all working papers) and operating data 6.7 of the Company and the Company Subsidiaries and all other information concerning its business, properties, personnel, vendors, landlords/sublandlords, tenants, licensees and franchisees as Onyx or its Designated Affiliates may reasonably request, including access to distribution centers and stores to conduct field audits at Onyx’s expense, and shall instruct the employees, counsel, financial advisors and auditors of the Company to cooperate with Onyx in connection with the foregoing. Onyx shall schedule and coordinate all inspections with the Company and shall give the Company at least two Business Days prior notice thereof, setting forth the inspection or materials that Onyx or its representatives intend to conduct. The Company shall be entitled to have representatives present at all times during any such inspection. Notwithstanding the foregoing, neither Onyx nor any of its representatives shall (i) contact or have any discussions with any of the Company’s employees below the level of division vice president (or, if no such position exists with respect to any particular area of the Company, division leader or its equivalent), agents, or representatives, unless in each case Onyx obtains the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed, (ii) contact or have any discussions with any of the vendors, licensees or franchisees of the Company or the Company Subsidiaries, unless in each case Onyx obtains the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed, (iii) contact or have any discussions with any of the landlord/sublandlords, tenants/subtenants of the Company or the Company Subsidiaries if, within two Business Days after receipt of notice from Onyx of its intention to have such a discussion, the Company shall raise a reasonable objection to such contact or discussion, (iv) damage any property or any portion thereof, or (v) perform any onsite procedure or investigation (including any onsite environmental investigation or study) that involves physical disturbance or damage to any property or any portion thereof. Within ten (10) Business Days after the date hereof, the Company shall appoint a representative for the purpose of coordination of inspections and providing approvals of contact with employees, vendors, landlords/sublandlords, tenants/subtenants, licensees or franchisees of the Company or its Subsidiaries. Notwithstanding the foregoing, neither the Company nor any Company Subsidiary shall be required to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of the Company or any Company Subsidiary or contravene any Law or binding agreement entered into prior to the date of this Separation Agreement. All information obtained pursuant to this Section 6.4(c) shall continue to be governed by the Confidentiality Agreement. (d) Onyx shall use its commercially reasonable efforts to obtain the Financing pursuant to the terms and conditions set forth in the Financing Commitment. Onyx shall notify the Company if at any time prior to the Closing Date the Financing Commitment shall expire or be terminated, modified or amended for any reason. The Company shall (i) provide and shall cause the Company Subsidiaries to, and use commercially reasonable efforts to cause the respective officers, employees and Representatives, including legal and accounting, of the Company and its Subsidiaries to provide, all cooperation reasonably requested by Onyx in connection with any debt financing that Onyx may determine to arrange (any such debt financing, a “Future Debt Financing”), including providing such access and documentation and taking such action as is customary for transactions such as the Financing or Future Debt Financing and facilitating the production of any due diligence items that the prospective lenders may reasonably request, including current Phase I Environmental Site Assessments, field audits, appraisals and title insurance Merger Agreement with respect to the real property, and (ii) satisfy the conditions in the Financing Commitment or Future Debt Financing that require action by the Company. Onyx shall promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket third party costs incurred by the Company or any of the Company Subsidiaries in connection with such cooperationRetained Employees. (e) During After the period from the date of this Separation Agreement through the earlier of the termination of this Separation Agreement pursuant to its terms and the Closing DateClosing, Onyx Newco shall, and shall cause each Subsidiary of Onyx Newco Entity to, subject to reasonable restrictions imposed from time to time upon advice of counsel respecting honor the applicable Law or the Confidentiality Agreement, afford representatives obligations under Section 6.9 of the Merger Agreement as such obligations relate to such Newco Entity. After the Closing, the Company and its Subsidiaries such information as they may reasonably require concerning the capitalization, liquidity and financial resources of Onyx and its Subsidiaries after giving effect to the transactions contemplated by this Separation Agreement. Notwithstanding the foregoing, neither Onyx nor any Onyx Subsidiary shall be required to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of Onyx or any Subsidiary of Onyx or contravene any Law or binding agreement entered into prior to the date of this Separation Agreement. The Company shall holdshall, and shall cause its officerseach ECN Entity to, employeeshonor the applicable obligations under Section 6.9 of the Merger Agreement as such obligations relate to such ECN Entity. (f) The parties agree that the representations, agentswarranties, consultants, advisors covenants and other Representatives to hold, in strict confidence, unless compelled to disclose by judicial or administrative process or at the direction of any Authority or, agreements in the opinion Merger Agreement or in any certificate delivered pursuant thereto shall not survive the consummation of its counsel, by other requirements the Merger or the termination of Law, all non-public information concerning Onyx furnished it pursuant to this Section 6.4(e) or its Representatives or otherwise in its possession the Merger Agreement (except to for the extent that such information can be shown to have been (x) covenants set forth in the public domain through no fault Sections 6.7 and 6.9 of the party to which it was furnished or (y) later lawfully acquired on a nonconfidential basis from other sources by the party to which it was furnishedMerger Agreement), and the Company shall not, without the prior written consent of the party that furnished such information, release or disclose such information to any other person, except its auditors, attorneys, financial advisors, financing sources, bankers and other consultants, advisors and other representatives who have a need to know such information and who agree to be bound by the provisions of this sentence. The Company shall be deemed to have satisfied its obligation to hold confidential information concerning or supplied by any other party if it exercises the same care as it takes to preserve confidentiality for its own similar confidential information.