Common use of Conduct of Investigation of Assets Clause in Contracts

Conduct of Investigation of Assets. (A) During the Review Period, Buyer and its accountants, engineers and other representatives and advisors, during normal business hours and upon reasonable advance Notice may, at Buyer's sole expense and risk, have reasonable access to the Assets and the files, books, records, documents, and other information relating thereto (other than certain privileged documents, confidential Third-Party documents and personnel file records and evaluative records pertaining to employees), without express or implied warranty of any kind regarding the accuracy of such information. Subject to Section 11.1(B), Seller will provide reasonable access to the Assets for such inspection of the Assets, including the environmental and physical condition of the Assets and the Environmental Obligations, and will make available for inspection and copying by Buyer originals or true and complete copies (at Seller's discretion) of any documents relating to the foregoing, including the documents listed in any Schedule. Prior to any such access, Buyer shall notify Seller of its desire for such access, and Buyer and Seller shall reasonably cooperate and determine a mutually acceptable time and date for such access. All documents or information obtained shall be subject to the confidentiality provisions of this Agreement. Buyer's inspections shall not unreasonably interfere with the business and operations of the Assets, shall not damage the Assets in any respect, shall not be invasive or destructive in any respect without the prior written consent of Seller and shall be conducted in accordance with standards customarily employed in the industry and in compliance with all governmental laws, rules and regulations. In respect of these rights, Buyer acknowledges each of the following: (1) Any access to Seller-operated Assets or Seller's data is given as an accommodation only, at Buyer's sole cost, risk and expense, that Seller makes no representations whatsoever as to the accuracy, completeness, or reliability of any such information so, or otherwise, disclosed to or obtained by Buyer. (2) Buyer relies and depends on and uses any and all such information, review or inspection exclusively and entirely at its own risk and without any recourse to Seller whatsoever. (B) Notwithstanding anything to the contrary in this Agreement, in no event shall Buyer conduct internal inspections of out of service tanks situated on the Real Property, conduct any sampling, boring, drilling or other invasive investigations activities (including soil borings, test pits and groundwater testing) or have any communications whether oral, written, electronic, or otherwise with any Government Authority specifically with respect to the Assets without the prior written consent of Seller. (C) Buyer's violation of Section 11.1(B) will constitute a material breach of this Agreement and just cause for Seller's immediate Termination pursuant to Section 5.3(C) without penalty of any kind to Seller. Seller's right to terminate this Agreement shall be in addition to any other causes of action and remedies that may be available to Seller under law or equity or this Agreement and shall not in any way limit Seller's other rights against Buyer. Following each such entry by Buyer or its agents or contractors with respect to any such inspections, Buyer shall promptly restore, or cause to be restored, the Assets to their original condition as existed immediately prior to any such inspections. (D) Seller shall cooperate with Buyer in all reasonable respects, but at no out-of-pocket cost to Seller, in making any inspections pursuant to this Section 11.1. (E) Buyer hereby defends, indemnifies and holds harmless each of the operators of the Assets and Seller Parties from and against any and all Claims actually resulting from the access permitted pursuant to this Section 11.1 and the related due diligence activity conducted by Buyer or any of Buyer's representatives with respect to the Assets, even if such Claims arise out of or result from, solely or in part, the sole, active, passive, concurrent or comparative negligence, strict liability or other fault or violation of law of or by a Seller Party, excepting only claims actually resulting from the gross negligence or willful misconduct of a Seller Party. The provisions of this Section 11.1 shall survive the Termination.