Common use of Investigation of Business; Access to Properties and Records; Notification of Certain Matters Clause in Contracts

Investigation of Business; Access to Properties and Records; Notification of Certain Matters. (a) Subject to restrictions contained in confidentiality agreements to which any member of the Seller Group is subject with respect to any information relating to any third party (in which case Sellers shall use their commercially reasonable efforts to make reasonable and appropriate substitute disclosure arrangements), prior to the Closing or termination of this Agreement, Sellers agree to give to Buyers and their legal counsel, accountants, lenders, investment bankers and their representatives, upon reasonable prior notice, reasonable access during normal business hours to the properties and Business Records of the members of the Seller Group (including computer files, retrieval programs and similar documentation and such access and information that may be necessary in connection with any environmental assessment), and shall permit them to consult with management employees of the members of the Seller Group, to allow Buyers a full opportunity to make such investigations as are reasonably necessary to analyze the affairs of the members of the Seller Group and shall furnish to Buyers or their authorized representatives such additional information concerning the assets of the members of the Seller Group as shall be reasonably requested, including all such information as shall be reasonably necessary to enable Buyers or their representatives to verify the accuracy of the representations and warranties contained in this Agreement, to verify that the covenants of Sellers contained in this Agreement have been complied with and to determine whether the conditions set forth in Article VI have been satisfied. No investigation made by Buyers or their representatives pursuant to this Section 5.1(a) shall affect the representations and warranties of Sellers pursuant to this Agreement. Any information provided to or obtained by Buyers or their representatives pursuant to this Agreement shall be held by Buyers or their representatives in accordance with, and shall be subject to the terms of, the Confidentiality Agreement. (b) Subject to restrictions contained in confidentiality agreements to which Buyers are subject with respect to any information relating to any third party, prior to the Closing or termination of this Agreement, Buyers agree to give to Sellers and their legal counsel, accountants, lenders, investment bankers and their representatives, upon reasonable prior notice, reasonable access during normal business hours to the properties and Business Records of the Buyers (including computer files, retrieval programs and similar documentation and such access and information that may be necessary in connection with any environmental assessment), and shall permit them to consult with management employees of Key, to allow Sellers a full opportunity to make such investigations as are reasonably necessary to analyze the affairs of the Buyers and shall furnish to Sellers or their authorized representatives such additional information concerning the assets of the Buyers as shall be reasonably requested, including all such information as shall be reasonably necessary to enable Sellers or their representatives to verify the accuracy of the representations and warranties contained in this Agreement, to verify that the covenants of Buyers contained in this Agreement have been complied with and to determine whether the conditions set forth in Article VI have been satisfied. No investigation made by Sellers or their representatives pursuant to this Section 5.1(b) shall affect the representations and warranties of Buyers pursuant to this Agreement. Any information provided to or obtained by Sellers or their representatives pursuant to this Agreement shall be held by Sellers and their representatives in accordance with, and shall be subject to the terms of, the Confidentiality Agreement. (c) Between the date hereof and the Closing Date, (i) Sellers shall give prompt notice to Buyers of (A) any notice or other communication (other than routine notices or communications in the Ordinary Course) from any Government Authority with respect to consummation of the Transactions, or (B) any notice or other communication from any person alleging that the consent of such person is or may be required in connection with the Transactions, and (ii) Buyers shall give prompt notice to Sellers of (A) any notice or other communication (other than routine notices or communications) from any Governmental Authority with respect to consummation of the Transaction, and (B) any notice or other communication from any person alleging that the consent of such person is or may be required in connection with the Transaction. (d) Buyers and their respective representatives have previously conducted, in relation to the Real Property and the Leased Property (collectively, the “Transferred Real Property”), Phase I Environmental Site Assessments (a “Phase I ESA”), and have provided each Phase I ESA to Sellers. From the date hereof through the Closing, Buyers shall have the right to conduct, in relation to the Transferred Real Property, environmental investigations and other sampling (including subsurface investigations and other sampling) to be proposed on a site-by-site basis and SWD testing (“Site Assessment”) using reputable professionals previously approved by Sellers, provided that such approval shall not be unreasonably withheld or delayed by Sellers. (i) All Site Assessments of the Transferred Real Property by Buyers and their respective representatives shall, if requested by Sellers, be conducted in the presence of a representative of Sellers, and shall be conducted at Buyers’ sole cost and expense. Buyers shall indemnify, defend and hold harmless Sellers from and against all costs, loss, damage, liability and expense, including reasonable attorneys’ fees, relating to or arising from the activities conducted by Buyers or their respective representatives pursuant to this Section 5.1(d); (ii) Buyers shall not conduct any Site Assessment at any Transferred Real Property prior to providing Sellers with a written description of the proposed environmental testing, and a reasonable period of time (not to exceed three (3) business days) to provide comments, which Buyers agree to consider in good faith, provided that approval to conduct the proposed environmental testing shall not be unreasonably withheld or delayed by Sellers. For any Site Assessment sampling, Sellers shall have the right, but not the obligation, to receive split samples; (iii) For Buyers’ Site Assessment activities, Sellers will provide reasonable access to the Real Property; for the Leased Real Property, Sellers will reasonably cooperate with Buyers in contacting the owners of the Leased Real Property directly to attempt to arrange for access for the purposes of conducting Site Assessments; (iv) Unless and until Closing occurs, unless otherwise required by Environmental Law, Buyers will not disclose any results of its Site Assessments to any Government Authority; provided, however, that if Buyers are compelled to disclose such results then Buyers shall immediately notify Sellers of any such disclosure and, if requested by Sellers, shall at the expense of Sellers use reasonable efforts to assist counsel in resisting and/or preparing to make such disclosure; and (v) While performing any Site Assessment, Buyers and their respective representatives must comply with Sellers’ written environmental and safety rules and policies at any Real Property, and with the third-party owner’s written environmental and safety rules and policies at any Leased Real Property, to the extent copies of such rules and policies are provided to Buyers and their respective representatives in advance of such activities. (vi) Buyers shall as soon as reasonably practicable, but not later than the ten (10) business days before the Closing Date, deliver written claim notices to Sellers (an “Environmental Defect Notice”) setting forth (A) any matters which, in Buyers’ reasonable opinion, constitute Environmental Conditions or SWD Defects and which Buyers intend to assert as Specified Pre-Closing Environmental Matters, (B) a description of the matter constituting the alleged Environmental Condition or SWD Defect, (C) supporting documents available to Buyers reasonably necessary for Sellers to verify the existence of the alleged Environmental Condition or SWD Defect, and (D) a proposed Remedial Action to address the Environmental Condition or SWD Defect (including an associated cost estimate, which estimate shall not be deemed to be the actual cost of the proposed Remedial Action for purposes of Sellers’ indemnification obligations with respect to the Specified Pre-Closing Environmental Matters).

Investigation of Business; Access to Properties and Records; Notification of Certain Matters. (a) Subject to restrictions contained in confidentiality agreements to which any member of the Seller Group Selling Parties is subject with respect to any information relating to any third party (in which case Sellers the Selling Parties shall use their commercially reasonable efforts to make reasonable and appropriate substitute disclosure arrangements), prior to the Closing or termination of this Agreement, Sellers the Selling Parties agree to give to Buyers Buyer and its Representatives, upon reasonable prior notice, reasonable access during normal business hours to the Business Records of CECG (solely to the extent that the same pertain to the Subject Interests), CEPH and CEPM, and shall permit them to consult with management employees of the Selling Parties, to allow Buyer a full opportunity to make such investigations as are reasonably necessary to analyze, and shall furnish to Buyer or its authorized Representatives such additional information concerning, the Subject Interests as shall be reasonably requested, including all such information as shall be reasonably necessary to enable Buyer or its Representatives to verify the accuracy of the representations and warranties contained in this Agreement, to verify that the covenants of the Selling Parties contained in this Agreement have been complied with and to determine whether the conditions set forth in Article VII have been satisfied. (b) Subject to restrictions contained in confidentiality agreements to which Buyer is subject with respect to any information relating to any third party (in which case Buyer shall use its commercially reasonably efforts to make reasonable and appropriate substitute disclosure arrangements), prior to the Closing or termination of this Agreement, Buyer agrees to give to the Selling Parties and their legal counsel, accountants, lenders, investment bankers and their representativesrespective Representatives, upon reasonable prior notice, reasonable access during normal business hours to the properties and Business Records of the members of the Seller Group (including computer files, retrieval programs and similar documentation and such access and information that may be necessary in connection with any environmental assessment)Buyer, and shall permit them to consult with management employees of the members of the Seller GroupBuyer, to allow Buyers the Selling Parties a full opportunity to make such investigations as are reasonably necessary to analyze the affairs of the members of the Seller Group Buyer and shall furnish to Buyers the Selling Parties or their respective authorized representatives Representatives such additional information concerning the assets of the members of the Seller Group Buyer as shall be reasonably requested, including all such information as shall be reasonably necessary to enable Buyers the Selling Parties or their representatives respective Representatives to verify the accuracy of the representations and warranties contained in this Agreement, to verify that the covenants of Sellers Buyer contained in this Agreement have been complied with and to determine whether the conditions set forth in Article VI VII have been satisfied. No investigation made by Buyers or their representatives pursuant to this Section 5.1(a) shall affect the representations and warranties of Sellers pursuant to this Agreement. Any information provided to or obtained by Buyers or their representatives pursuant to this Agreement shall be held by Buyers or their representatives in accordance with, and shall be subject to the terms of, the Confidentiality Agreement. (b) Subject to restrictions contained in confidentiality agreements to which Buyers are subject with respect to any information relating to any third party, prior to the Closing or termination of this Agreement, Buyers agree to give to Sellers and their legal counsel, accountants, lenders, investment bankers and their representatives, upon reasonable prior notice, reasonable access during normal business hours to the properties and Business Records of the Buyers (including computer files, retrieval programs and similar documentation and such access and information that may be necessary in connection with any environmental assessment), and shall permit them to consult with management employees of Key, to allow Sellers a full opportunity to make such investigations as are reasonably necessary to analyze the affairs of the Buyers and shall furnish to Sellers or their authorized representatives such additional information concerning the assets of the Buyers as shall be reasonably requested, including all such information as shall be reasonably necessary to enable Sellers or their representatives to verify the accuracy of the representations and warranties contained in this Agreement, to verify that the covenants of Buyers contained in this Agreement have been complied with and to determine whether the conditions set forth in Article VI have been satisfied. No investigation made by Sellers or their representatives pursuant to this Section 5.1(b) shall affect the representations and warranties of Buyers pursuant to this Agreement. Any information provided to or obtained by Sellers or their representatives pursuant to this Agreement shall be held by Sellers and their representatives in accordance with, and shall be subject to the terms of, the Confidentiality Agreement. (c) Between the date hereof and the Closing Date, (i) Sellers the Selling Parties shall give prompt notice to Buyers Buyer of (A) any notice or other communication (other than routine notices or communications in the Ordinary Courseordinary course of business) from any Government Governmental Authority with respect to consummation of the Transactionstransactions contemplated by this Agreement, or (B) any notice or other communication from any person Person alleging that the consent of such person Person is or may be required in connection with the Transactionstransactions contemplated by this Agreement or (C) any occurrence, event or circumstance that would reasonably be expected to result in the failure of any of the conditions set forth in Section 7.01 to be satisfied, and (ii) Buyers Buyer shall give prompt notice to Sellers the Selling Parties of (A) any notice or other communication (other than routine notices or communications) from any Governmental Authority with respect to consummation of the Transactiontransactions contemplated by this Agreement, and (B) any notice or other communication from any person Person alleging that the consent of such person Person is or may be required in connection with the Transaction. (d) Buyers and their respective representatives have previously conducted, in relation to the Real Property and the Leased Property (collectively, the “Transferred Real Property”), Phase I Environmental Site Assessments (a “Phase I ESA”), and have provided each Phase I ESA to Sellers. From the date hereof through the Closing, Buyers shall have the right to conduct, in relation to the Transferred Real Property, environmental investigations and other sampling (including subsurface investigations and other sampling) to be proposed on a site-by-site basis and SWD testing (“Site Assessment”) using reputable professionals previously approved transactions contemplated by Sellers, provided that such approval shall not be unreasonably withheld this Agreement or delayed by Sellers. (i) All Site Assessments of the Transferred Real Property by Buyers and their respective representatives shall, if requested by Sellers, be conducted in the presence of a representative of Sellers, and shall be conducted at Buyers’ sole cost and expense. Buyers shall indemnify, defend and hold harmless Sellers from and against all costs, loss, damage, liability and expense, including reasonable attorneys’ fees, relating to or arising from the activities conducted by Buyers or their respective representatives pursuant to this Section 5.1(d); (ii) Buyers shall not conduct any Site Assessment at any Transferred Real Property prior to providing Sellers with a written description of the proposed environmental testing, and a reasonable period of time (not to exceed three (3) business days) to provide comments, which Buyers agree to consider in good faith, provided that approval to conduct the proposed environmental testing shall not be unreasonably withheld or delayed by Sellers. For any Site Assessment sampling, Sellers shall have the right, but not the obligation, to receive split samples; (iii) For Buyers’ Site Assessment activities, Sellers will provide reasonable access to the Real Property; for the Leased Real Property, Sellers will reasonably cooperate with Buyers in contacting the owners of the Leased Real Property directly to attempt to arrange for access for the purposes of conducting Site Assessments; (iv) Unless and until Closing occurs, unless otherwise required by Environmental Law, Buyers will not disclose any results of its Site Assessments to any Government Authority; provided, however, that if Buyers are compelled to disclose such results then Buyers shall immediately notify Sellers of any such disclosure and, if requested by Sellers, shall at the expense of Sellers use reasonable efforts to assist counsel in resisting and/or preparing to make such disclosure; and (v) While performing any Site Assessment, Buyers and their respective representatives must comply with Sellers’ written environmental and safety rules and policies at any Real Property, and with the third-party owner’s written environmental and safety rules and policies at any Leased Real Property, to the extent copies of such rules and policies are provided to Buyers and their respective representatives in advance of such activities. (vi) Buyers shall as soon as reasonably practicable, but not later than the ten (10) business days before the Closing Date, deliver written claim notices to Sellers (an “Environmental Defect Notice”) setting forth (A) any matters which, in Buyers’ reasonable opinion, constitute Environmental Conditions or SWD Defects and which Buyers intend to assert as Specified Pre-Closing Environmental Matters, (B) a description of the matter constituting the alleged Environmental Condition or SWD Defect, (C) supporting documents available any occurrence, event or circumstance that would reasonably be expected to Buyers reasonably necessary for Sellers to verify result in the existence failure of any of the alleged Environmental Condition or SWD Defect, and (D) a proposed Remedial Action to address the Environmental Condition or SWD Defect (including an associated cost estimate, which estimate shall not be deemed conditions set forth in Section 7.02 to be the actual cost of the proposed Remedial Action for purposes of Sellers’ indemnification obligations with respect to the Specified Pre-Closing Environmental Matters)satisfied.

Investigation of Business; Access to Properties and Records; Notification of Certain Matters. (a) Subject to restrictions contained in confidentiality agreements to which any member of the Seller Group Selling Parties is subject with respect to any information relating to any third party (in which case Sellers the Selling Parties shall use their commercially reasonable efforts to make reasonable and appropriate substitute disclosure arrangements), prior to the Closing or termination of this Agreement, Sellers the Selling Parties agree to give to Buyers Buyer and its Representatives, upon reasonable prior notice, reasonable access during normal business hours to the Business Records of the Selling Parties (solely to the extent that the same pertain to the Subject Interests or the assets of CEPM) and CEPM, and shall permit them to consult with management employees of the Selling Parties and CEPM, to allow Buyer a full opportunity to make such investigations as are reasonably necessary to analyze, and shall furnish to Buyer or its authorized Representatives such additional information concerning, the Subject Interests and the assets of CEPM as shall be reasonably requested, including all such information as shall be reasonably necessary to enable Buyer or its Representatives to verify the accuracy of the representations and warranties contained in this Agreement, to verify that the covenants of the Selling Parties contained in this Agreement have been complied with and to determine whether the conditions set forth in Article VIII have been satisfied. (b) Subject to restrictions contained in confidentiality agreements to which Buyer is subject with respect to any information relating to any third party (in which case Buyer shall use its commercially reasonably efforts to make reasonable and appropriate substitute disclosure arrangements), prior to the Closing or termination of this Agreement, Buyer agrees to give to the Selling Parties and their legal counsel, accountants, lenders, investment bankers and their representativesrespective Representatives, upon reasonable prior notice, reasonable access during normal business hours to the properties and Business Records of the members of the Seller Group (including computer files, retrieval programs and similar documentation and such access and information that may be necessary in connection with any environmental assessment)Buyer, and shall permit them to consult with management employees of the members of the Seller GroupBuyer, to allow Buyers the Selling Parties a full opportunity to make such investigations as are reasonably necessary to analyze the affairs of the members of the Seller Group Buyer and shall furnish to Buyers the Selling Parties or their respective authorized representatives Representatives such additional information concerning the assets of the members of the Seller Group Buyer as shall be reasonably requested, including all such information as shall be reasonably necessary to enable Buyers the Selling Parties or their representatives respective Representatives to verify the accuracy of the representations and warranties contained in this Agreement, to verify that the covenants of Sellers Buyer contained in this Agreement have been complied with and to determine whether the conditions set forth in Article VI VIII have been satisfied. No investigation made by Buyers or their representatives pursuant to this Section 5.1(a) shall affect the representations and warranties of Sellers pursuant to this Agreement. Any information provided to or obtained by Buyers or their representatives pursuant to this Agreement shall be held by Buyers or their representatives in accordance with, and shall be subject to the terms of, the Confidentiality Agreement. (b) Subject to restrictions contained in confidentiality agreements to which Buyers are subject with respect to any information relating to any third party, prior to the Closing or termination of this Agreement, Buyers agree to give to Sellers and their legal counsel, accountants, lenders, investment bankers and their representatives, upon reasonable prior notice, reasonable access during normal business hours to the properties and Business Records of the Buyers (including computer files, retrieval programs and similar documentation and such access and information that may be necessary in connection with any environmental assessment), and shall permit them to consult with management employees of Key, to allow Sellers a full opportunity to make such investigations as are reasonably necessary to analyze the affairs of the Buyers and shall furnish to Sellers or their authorized representatives such additional information concerning the assets of the Buyers as shall be reasonably requested, including all such information as shall be reasonably necessary to enable Sellers or their representatives to verify the accuracy of the representations and warranties contained in this Agreement, to verify that the covenants of Buyers contained in this Agreement have been complied with and to determine whether the conditions set forth in Article VI have been satisfied. No investigation made by Sellers or their representatives pursuant to this Section 5.1(b) shall affect the representations and warranties of Buyers pursuant to this Agreement. Any information provided to or obtained by Sellers or their representatives pursuant to this Agreement shall be held by Sellers and their representatives in accordance with, and shall be subject to the terms of, the Confidentiality Agreement. (c) Between the date hereof and the Closing Date, (i) Sellers the Selling Parties shall give prompt notice to Buyers Buyer of (A) any notice or other communication (other than routine notices or communications in the Ordinary Courseordinary course of business) from any Government Governmental Authority with respect to consummation of the Transactionstransactions contemplated by this Agreement, or (B) any notice or other communication from any person Person alleging that the consent of such person Person is or may be required in connection with the Transactionstransactions contemplated by this Agreement or (C) any occurrence, event or circumstance that would reasonably be expected to result in the failure of any of the conditions set forth in Section 8.01 to be satisfied, and (ii) Buyers Buyer shall give prompt notice to Sellers the Selling Parties of (A) any notice or other communication (other than routine notices or communications) from any Governmental Authority with respect to consummation of the Transactiontransactions contemplated by this Agreement, and (B) any notice or other communication from any person Person alleging that the consent of such person Person is or may be required in connection with the Transaction. (d) Buyers and their respective representatives have previously conducted, in relation to the Real Property and the Leased Property (collectively, the “Transferred Real Property”), Phase I Environmental Site Assessments (a “Phase I ESA”), and have provided each Phase I ESA to Sellers. From the date hereof through the Closing, Buyers shall have the right to conduct, in relation to the Transferred Real Property, environmental investigations and other sampling (including subsurface investigations and other sampling) to be proposed on a site-by-site basis and SWD testing (“Site Assessment”) using reputable professionals previously approved transactions contemplated by Sellers, provided that such approval shall not be unreasonably withheld this Agreement or delayed by Sellers. (i) All Site Assessments of the Transferred Real Property by Buyers and their respective representatives shall, if requested by Sellers, be conducted in the presence of a representative of Sellers, and shall be conducted at Buyers’ sole cost and expense. Buyers shall indemnify, defend and hold harmless Sellers from and against all costs, loss, damage, liability and expense, including reasonable attorneys’ fees, relating to or arising from the activities conducted by Buyers or their respective representatives pursuant to this Section 5.1(d); (ii) Buyers shall not conduct any Site Assessment at any Transferred Real Property prior to providing Sellers with a written description of the proposed environmental testing, and a reasonable period of time (not to exceed three (3) business days) to provide comments, which Buyers agree to consider in good faith, provided that approval to conduct the proposed environmental testing shall not be unreasonably withheld or delayed by Sellers. For any Site Assessment sampling, Sellers shall have the right, but not the obligation, to receive split samples; (iii) For Buyers’ Site Assessment activities, Sellers will provide reasonable access to the Real Property; for the Leased Real Property, Sellers will reasonably cooperate with Buyers in contacting the owners of the Leased Real Property directly to attempt to arrange for access for the purposes of conducting Site Assessments; (iv) Unless and until Closing occurs, unless otherwise required by Environmental Law, Buyers will not disclose any results of its Site Assessments to any Government Authority; provided, however, that if Buyers are compelled to disclose such results then Buyers shall immediately notify Sellers of any such disclosure and, if requested by Sellers, shall at the expense of Sellers use reasonable efforts to assist counsel in resisting and/or preparing to make such disclosure; and (v) While performing any Site Assessment, Buyers and their respective representatives must comply with Sellers’ written environmental and safety rules and policies at any Real Property, and with the third-party owner’s written environmental and safety rules and policies at any Leased Real Property, to the extent copies of such rules and policies are provided to Buyers and their respective representatives in advance of such activities. (vi) Buyers shall as soon as reasonably practicable, but not later than the ten (10) business days before the Closing Date, deliver written claim notices to Sellers (an “Environmental Defect Notice”) setting forth (A) any matters which, in Buyers’ reasonable opinion, constitute Environmental Conditions or SWD Defects and which Buyers intend to assert as Specified Pre-Closing Environmental Matters, (B) a description of the matter constituting the alleged Environmental Condition or SWD Defect, (C) supporting documents available any occurrence, event or circumstance that would reasonably be expected to Buyers reasonably necessary for Sellers to verify result in the existence failure of any of the alleged Environmental Condition or SWD Defect, and (D) a proposed Remedial Action to address the Environmental Condition or SWD Defect (including an associated cost estimate, which estimate shall not be deemed conditions set forth in Section 8.02 to be the actual cost of the proposed Remedial Action for purposes of Sellers’ indemnification obligations with respect to the Specified Pre-Closing Environmental Matters)satisfied.