Common use of Access to Information and Inspection Clause in Contracts

Access to Information and Inspection. For purposes of facilitating the Transaction, at Parent’s reasonable request, Seller shall afford (a) the officers and employees and (b) the accountants, consultants, legal counsel, financial advisors, financing sources and agents and other Representatives of Purchaser such reasonable access during normal business hours, throughout the period prior to the earlier of the Closing Date and termination pursuant to Section 11.01, to Seller’s and the Companies’ personnel and properties, contracts, commitments, books and records and any report, schedule or other document filed or received by it pursuant to the requirements of applicable Laws and with such additional accounting, operating, environmental and other data and information regarding the Companies, to the extent in the possession of the Companies or their Subsidiaries, as Xxxx or Purchaser may reasonably request. Notwithstanding the foregoing, Seller shall not be required to provide access to or make available to any person any document or information that, in the reasonable judgment of Seller, (i) violates any of its obligations with respect to confidentiality, (ii) is subject to any attorney-client, work-product or other legal privilege, or (iii) the disclosure of which would violate any Law or legal duty (provided that Seller will use reasonable efforts to allow such access or disclosure in a manner that does not result in loss or waiver of such privilege, including, but not limited to, entering into appropriate common interest or similar agreements); provided, further, that nothing herein shall authorize Xxxx, Purchaser or their Representatives to undertake any environmental testing or sampling at any of the properties owned, operated or leased by Seller or its Subsidiaries. Each of Xxxx and Purchaser agrees that it will not, and will cause its Representatives not to, use any information obtained pursuant to this Section 9.03 for any competitive or other purpose unrelated to the consummation of the Transaction. Each of Xxxx and Purchaser will use its commercially reasonable efforts to minimize any disruption to the businesses of Seller that may result from requests for access. Prior to the delivery of the Joinder, Parent shall use its reasonable best efforts, including enforcing Seller’s obligations under the Merger Agreement to the extent necessary, to cause Seller to comply with its obligations in this Section 9.03.

Access to Information and Inspection. For purposes (a) During the period from the date of facilitating the Transactionexecution of this Agreement by both Parties through the Closing, Seller (i) shall give Buyer and its authorized representatives access, during regular business hours and upon reasonable advance notice, to such, properties, facilities and Books and Records of the Company as are necessary to allow Buyer and its authorized representatives to make such investigation of the Business and the assets of the Company, including the Optional Real Estate Assets, as they may reasonably request and (ii) shall cause officers of the Company to furnish Buyer and its authorized representatives with such financial and operating data and other information with respect to the Business and the assets of the Company as Buyer may from time to time reasonably request including the information described on Section 7.2(a) of the Disclosure Schedule; provided, however, that any such access or furnishing of information shall be conducted in such a manner as not unreasonably to interfere with the normal operations of the Company. Notwithstanding anything in this Agreement to the contrary, any investigation of environmental matters by or on behalf of Buyer will be limited to visual inspections and site visits commonly included in the scope of “Phase 1” level environmental inspections, and Buyer will not have the right to perform or conduct any other sampling or testing at, in, on, or underneath any real property. The Company shall have the right to have a representative present at Parent’s reasonable requestall times during any such inspections, interviews and examinations. Notwithstanding anything to the contrary in this Agreement, Seller and the Company shall not be required to disclose any information to Buyer or its representatives if Seller determines, in its sole discretion, that (A) such disclosure would contravene any Applicable Law or a binding agreement entered into prior to the date hereof; provided that Seller shall furnish Buyer all relevant agreements and information related to the Optional Real Estate Assets, (B) such information is pertinent to any litigation in which the Company or any of its Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand, are adverse parties, or (C) such information relates to any consolidated, combined or unitary Tax Return filed by Seller or any of its Affiliates (other than the Company) or any of their respective predecessor entities; provided, that, in connection with this clause (C), Seller shall afford (a) in all events provide Buyer with information solely relating to the officers Company and employees and the Business from any such consolidated, combined or unitary Tax Returns. (b) From the accountantsdate of the execution of this Agreement by both Parties to the Closing Date, consultantseach Party shall promptly notify the other Party in writing of (i) any action, legal counselsuit, financial advisorsproceeding or investigation that is instituted or threatened against such Party to restrain, financing sources prohibit or otherwise challenge the legality or propriety of any transaction contemplated by this Agreement or (ii) any facts, events, circumstances, actions or developments which become known to a Party, the existence or occurrence of which will or is reasonably likely to result in any of the conditions set forth in Sections 5.1 or 5.2 of this Agreement becoming incapable of being satisfied. (c) Promptly following the Closing Date, Seller shall deliver to Buyer, or make reasonably accessible to Buyer on Seller’s computer system, the Books and agents Records in its possession not previously provided to Buyer. Buyer agrees that Seller may retain a copy of all Books and Records and other materials relating to the Business and the assets of the Company and after the Closing Date Seller agrees to keep such information confidential except as may be required by Applicable Law or except to the extent any such information is or becomes generally available to the public (without any breach of this confidentiality covenant) prior to the time of disclosure. (d) In order to facilitate the resolution of any claims made against or incurred by Seller (as it relates to the Company), for a period of seven (7) years after the Closing or, if shorter, the applicable period specified in Buyer’s document retention policy, Buyer shall (i) retain the Books and Records relating to periods prior to the Closing and (ii) afford the Representatives of Purchaser such Seller reasonable access (including the right to make, at Seller’s expense, photocopies), during normal business hours, throughout the period to such Books and Records; provided, however, that Buyer shall notify Seller in writing at least thirty (30) days in advance of destroying any such Books and Records prior to the earlier seventh anniversary of the Closing Date and termination pursuant to Section 11.01, to Seller’s and the Companies’ personnel and properties, contracts, commitments, books and records and any report, schedule or other document filed or received by it pursuant to the requirements of applicable Laws and with such additional accounting, operating, environmental and other data and information regarding the Companies, to the extent in the possession of the Companies or their Subsidiaries, as Xxxx or Purchaser may reasonably request. Notwithstanding the foregoing, Seller shall not be required order to provide access Seller the opportunity to or make available to any person any document or information that, copy such Books and Records in the reasonable judgment of Seller, (i) violates any of its obligations accordance with respect to confidentiality, (ii) is subject to any attorney-client, work-product or other legal privilege, or (iii) the disclosure of which would violate any Law or legal duty (provided that Seller will use reasonable efforts to allow such access or disclosure in a manner that does not result in loss or waiver of such privilege, including, but not limited to, entering into appropriate common interest or similar agreements); provided, further, that nothing herein shall authorize Xxxx, Purchaser or their Representatives to undertake any environmental testing or sampling at any of the properties owned, operated or leased by Seller or its Subsidiaries. Each of Xxxx and Purchaser agrees that it will not, and will cause its Representatives not to, use any information obtained pursuant to this Section 9.03 for any competitive or other purpose unrelated to the consummation of the Transaction. Each of Xxxx and Purchaser will use its commercially reasonable efforts to minimize any disruption to the businesses of Seller that may result from requests for access. Prior to the delivery of the Joinder, Parent shall use its reasonable best efforts, including enforcing Seller’s obligations under the Merger Agreement to the extent necessary, to cause Seller to comply with its obligations in this Section 9.037.2(d).

Access to Information and Inspection. For (a) During the period from the date of the execution of this Agreement by both Parties through the Closing, Seller (i) shall give Buyer and its authorized Representatives access, during regular business hours and upon reasonable advance notice, to such, properties and Books and Records of the Company or its Affiliates as are necessary to allow Buyer and its authorized Representatives to make such investigation of the Business and the assets of the Company as they may reasonably request (including any records covered by clause (ii) of the definition of Books and Records) and (ii) shall cause officers of the Company or its Affiliates to furnish Buyer and its authorized Representatives with such financial and operating data and other information with respect to the Business and the assets of the Company as Buyer may from time to time reasonably request; provided, however, that any such access or furnishing of information shall be conducted at Buyer’s expense and in such a manner as to not unreasonably interfere with the normal operations of the Company or such of its Affiliates, and Buyer and its authorized Representatives shall not conduct any sampling, testing, boring, drilling or invasive investigation activities without the prior written consent of Seller, which consent may be withheld in Seller’s sole discretion. The Company or its Affiliates shall have the right to have a Representative present at all times during any such inspections, interviews and examinations. Notwithstanding anything to the contrary in this Agreement, Seller, the Company or its Affiliates shall not be required to disclose any information to Buyer or its Representatives if Seller determines, in its sole discretion, acting reasonably, that (A) such disclosure would jeopardize any attorney-client or other legal privilege, (B) such disclosure would contravene any Applicable Law, fiduciary duty or a binding agreement entered into prior to the date hereof, (C) such information is pertinent to any litigation in which the Company or any of its Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand, are adverse parties, (D) such information should not be disclosed due to its competitively sensitive nature or (E) such information relates to any consolidated, combined or unitary Tax Return filed by Seller, the Company or any of their Affiliates or any of their respective predecessor entities. Buyer hereby agrees to defend, indemnify and hold harmless each of the Seller Indemnified Group from and against any and all Losses arising out of, resulting from or relating to any field visit, environmental property assessment, or other investigation activities or other due diligence activity conducted by Buyer or any of its Representatives with respect to the Company or the Leased Real Property, EVEN IF SUCH LOSSES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE SOLE, ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY, OR OTHER FAULT BY ANY OF THE SELLER INDEMNIFIED GROUP, EXCEPTING ONLY LOSSES ACTUALLY RESULTING ON ACCOUNT OF VIOLATION OF LAW, THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF ANY OF THE SELLER INDEMNIFIED GROUP. Notwithstanding anything to the contrary, nothing disclosed to Buyer or its Representatives under this Section 7.2, nor any other investigation conducted by or on behalf of Buyer or its Affiliates, shall modify, amend or affect Buyer’s rights under this Agreement and the other documents contemplated by this Agreement and by the other Transaction Documents (including for purposes of facilitating Articles III and IX). (b) From the Transactiondate of the execution of this Agreement by both Parties to the Closing Date, at Parent’s reasonable requesteach Party shall promptly notify the other Party in writing of (i) any Action that is instituted or threatened against such Party to restrain, prohibit or otherwise challenge the legality or propriety of any transaction contemplated by this Agreement or by the other Transaction Documents or (ii) any facts, events, circumstances, actions or developments which become known to a Party, the existence or occurrence of which will or is reasonably likely to result in any of the conditions set forth in Section 5.1 or Section 5.2 of this Agreement becoming incapable of being satisfied. (c) Promptly following the Closing Date, Seller shall afford deliver to Buyer, or make reasonably accessible to Buyer on the Company’s computer system, the Books and Records in its possession not previously not provided to Buyer. Buyer agrees that Seller may retain a copy of all Books and Records and other materials relating to the Business and the assets of the Company and, after the Closing Date, Seller agrees to keep such information confidential except as may be required by Applicable Law or except to the extent any such information is or becomes generally available to the public (awithout any breach of this confidentiality covenant) prior to the officers time of disclosure. (d) In order to facilitate the resolution of any claims made against or incurred by Seller (as it relates to the Company), for a period of seven (7) years after the Closing, Buyer shall (i) retain the Books and employees Records relating to periods prior to the Closing and (bii) afford the accountants, consultants, legal counsel, financial advisors, financing sources and agents and other Representatives of Purchaser such Seller reasonable access (including the right to make, at Seller’s expense, photocopies), during normal business hours, throughout the period to such Books and Records; provided, however, that Buyer shall notify Seller in writing at least thirty (30) days in advance of destroying any such Books and Records prior to the earlier seventh anniversary of the Closing Date in order to provide Seller the opportunity to copy such Books and termination pursuant to Records in accordance with this Section 11.017.2(d); provided, to Seller’s and however, Buyer, the Companies’ personnel and properties, contracts, commitments, books and records and any report, schedule Company (following the Closing) or other document filed or received by it pursuant to the requirements of applicable Laws and with such additional accounting, operating, environmental and other data and information regarding the Companies, to the extent in the possession of the Companies or their Subsidiaries, as Xxxx or Purchaser may reasonably request. Notwithstanding the foregoing, Seller its Affiliates shall not be required to provide access disclose any information to Seller or make available to any person any document or information thatits Representatives if Buyer determines, in the reasonable judgment of Sellerits sole discretion, acting reasonably, that (iA) violates any of its obligations with respect to confidentiality, (ii) is subject to such disclosure would jeopardize any attorney-client, work-product client or other legal privilege, (B) such disclosure would contravene any Applicable Law, fiduciary duty or a binding agreement to any third party, (C) such information is pertinent to any litigation in which Buyer, the Company or any of its Affiliates, on the one hand, and Seller or any of its Affiliates, on the other hand, are adverse parties or (iiiD) such information relates to any consolidated, combined or unitary Tax Return filed by Buyer, the disclosure of which would violate any Law Company or legal duty (provided that Seller will use reasonable efforts to allow such access or disclosure in a manner that does not result in loss or waiver of such privilege, including, but not limited to, entering into appropriate common interest or similar agreements); provided, further, that nothing herein shall authorize Xxxx, Purchaser or their Representatives to undertake any environmental testing or sampling at any of the properties owned, operated their Affiliates or leased by Seller or its Subsidiaries. Each any of Xxxx and Purchaser agrees that it will not, and will cause its Representatives not to, use any information obtained pursuant to this Section 9.03 for any competitive or other purpose unrelated to the consummation of the Transaction. Each of Xxxx and Purchaser will use its commercially reasonable efforts to minimize any disruption to the businesses of Seller that may result from requests for access. Prior to the delivery of the Joinder, Parent shall use its reasonable best efforts, including enforcing Seller’s obligations under the Merger Agreement to the extent necessary, to cause Seller to comply with its obligations in this Section 9.03their respective predecessor entities.