Common use of Access by Buyer Clause in Contracts

Access by Buyer. Subject to the rights of tenants and the requirements of Paragraph 4(e), at Buyer’s sole cost and expense, Buyer and Buyer’s agents and representatives shall have the right, upon no less than one (1) Business Day’s prior notice to Seller, to enter upon the Real Property at all reasonable times in order to conduct such inspections, tests or studies as Buyer may deem appropriate (including, without limitation, for the preparation of an ALTA/NSPS Land Title Survey of the Real Property), excluding invasive investigations of the land or improvements thereon; except that any such entry shall be coordinated with Seller and Seller’s property manager or other agent of Seller in control of the Property, and shall be conducted in such a manner as to not materially interfere with the on-going operation of the Property. Any damage caused to the Property in connection with any inspection, test, or study shall be promptly and fully repaired by Buyer and the Property returned to its prior condition, all at Buyer’s cost, which obligation shall survive any termination of this Agreement. In no event shall Buyer, prior to the Close of Escrow, indicate in any way that Buyer owns or holds any other rights of any nature in the Property or any portion thereof, or that Buyer is in any manner acting on behalf of Seller. Buyer shall keep the Property free and clear of any mechanic’s liens or materialmen’s liens arising out of any of Buyer’s activities or those of its agents and representatives, which obligation shall survive any termination of this Agreement. Not less than two (2) Business Days prior to any work being conducted on the Real Property by or for the benefit of Buyer, which work could be the basis for the filing of a mechanic’s lien claim against the Real Property if such work were not duly paid for, Buyer shall obtain Seller’s written consent and shall allow Seller to post such notices of non-responsibility with respect thereto as Seller may deem appropriate. Further, except for the mere discovery of existing conditions on or affecting the Property or to the extent arising from the active negligence or willful misconduct of Seller, Buyer hereby agrees to indemnify, defend and hold Seller harmless from and against any and all loss, cost, liability or expense arising out of the acts or omissions of Buyer and/or its agents or representatives in connection with any such entry, inspection, test, study or other activity, including without limitation all legal expenses reasonably incurred by Seller in connection therewith. The indemnity provided herein shall survive the Close of Escrow and any termination of this Agreement and shall not be limited by the insurance required to be maintained under Paragraph 4(e).

Access by Buyer. Subject to any limitations, conditions, or requirements set forth herein or elsewhere in this Agreement, Seller shall make the rights of tenants ▇▇▇▇▇▇ Creek Mine Operations and the requirements of Paragraph 4(e), at Buyer’s sole cost and expense, Purchased Assets available to Buyer and Buyer’s agents its representatives for inspection and representatives shall have the right, upon no less than one (1) Business Day’s prior notice to Seller, to enter upon the Real Property at all reasonable times review in order to conduct such inspectionspermit Buyer to perform its due diligence review, tests or studies as Buyer may deem appropriate follows: (including, without limitation, for a) From and after the preparation of an ALTA/NSPS Land Title Survey of the Real Property), excluding invasive investigations of the land or improvements thereon; except that any such entry shall be coordinated with Seller date hereof and Seller’s property manager or other agent of Seller in control of the Property, up to and shall be conducted in such a manner as to not materially interfere with the on-going operation of the Property. Any damage caused to the Property in connection with any inspection, test, or study shall be promptly and fully repaired by Buyer and the Property returned to its prior condition, all at Buyer’s cost, which obligation shall survive any termination of this Agreement. In no event shall Buyer, prior to the Close of Escrow, indicate in any way that Buyer owns or holds any other rights of any nature in the Property or any portion thereof, or that Buyer is in any manner acting on behalf of Seller. Buyer shall keep the Property free and clear of any mechanic’s liens or materialmen’s liens arising out of any of Buyer’s activities or those of its agents and representatives, which obligation shall survive any termination of this Agreement. Not less than including two (2) Business Days prior to the Closing Date (or until earlier termination of this Agreement) but subject to the other provisions of this Section 6.6 and the obtaining of any work being conducted required consents from any Persons, Seller shall make the Records available to Buyer in an online virtual data room, at Buyer’s sole risk, cost and expense, but only to the extent such Records are in Seller’s or its Affiliates’ possession or control, relate to the Purchased Assets and are accessible to Buyer pursuant to the terms of this Agreement. Seller shall have no obligation to provide Buyer such access to any Records that Seller cannot legally provide Buyer because of third-party restrictions on Seller after Seller has made a reasonable attempt to obtain the Real Property by or for the benefit waiver of such restriction. Buyer, which work could and any Person acting on its behalf, shall keep all Records obtained confidential through the Closing Date and as otherwise contemplated in the Confidentiality Agreement dated January 25, 2016, by and betweeen Consol Energy Inc. and Buyer (the “Confidentiality Agreement”); provided, however, if the Closing occurs, such Confidentiality Agreement shall only remain in force and effect to the extent any confidential information otherwise protected under such Confidentiality Agreement does not relate to the Purchased Assets. Buyer’s inspection of the Records and any additional information provided by Seller relating to the Purchased Assets may be limited by Seller to prevent the basis for violation of the filing obligation of confidence or any contractual commitment of Seller to a mechanicThird Party. Buyer shall ensure that Buyer’s lien claim against authorized representatives comply with the Real Property if such work were not duly paid forprovisions of this Section 6.6, the said Confidentiality Agreement, and any other confidentiality agreements in effect. Upon termination of this Agreement without Closing, Buyer shall obtain destroy any and all physical copies and delete permanently any and all digital copies of Records and background materials together with any and all of Buyer’s notes and work papers prepared by or on behalf of Buyer in connection with its due diligence investigation, and upon Seller’s written consent request, an officer of Buyer will certify as to the destruction thereof; provided, however, Buyer shall be entitled to keep one copy of all such Records, materials, notes and shall allow Seller to post such notices of non-responsibility with respect thereto as Seller may deem appropriate. Further, except work papers solely for the mere discovery of existing conditions on or affecting the Property or purpose of, and to the extent arising from required for, legal and compliance purposes; and (b) Seller hereby consents to Buyer’s on-site, non-invasive inspections of the active negligence Purchased Assets, upon advance written notice to Seller and at Buyer’s sole risk and expense. During any such inspection, Buyer agrees not to interfere in any manner with the normal use of the Purchased Assets and agrees to comply with all Seller’s requirements and safety policies of which it has notice. If Buyer or willful misconduct any Person acting on its behalf prepares a written assessment of any Purchased Asset, Buyer shall, upon request of Seller, furnish a copy thereof to Seller. The Parties shall keep any such assessment confidential. Any and all on-site inspections conducted by Buyer hereby pursuant to this Section 6.6(b) must comply with Seller’s third-party access policy, a copy of which will be provided to Buyer in advance of such inspections upon request. In accordance with Section 10.2, Buyer agrees to indemnify, defend defend, and hold harmless (including reasonable attorneys’ fees) Seller harmless from and against any and all loss, cost, liability or expense arising out of the acts or omissions of Buyer and/or its agents or representatives in connection Indemnified Parties with any respect to such entry, inspection, test, study or other activity, including without limitation all legal expenses reasonably incurred by Seller in connection therewith. The indemnity provided herein shall survive the Close of Escrow and any termination of activities conducted under this Agreement and shall not be limited by the insurance required to be maintained under Paragraph 4(e)Section 6.6.

Access by Buyer. Subject to any limitations, conditions, or requirements set forth herein or elsewhere in this Agreement, Seller shall make the rights of tenants ▇▇▇▇▇▇ Creek Mine Operations and the requirements of Paragraph 4(e), at Buyer’s sole cost and expense, Purchased Assets available to Buyer and Buyer’s agents its representatives for inspection and representatives shall have the right, upon no less than one (1) Business Day’s prior notice to Seller, to enter upon the Real Property at all reasonable times review in order to conduct such inspectionspermit Buyer to perform its due diligence review, tests or studies as Buyer may deem appropriate follows: (including, without limitation, for a) From and after the preparation of an ALTA/NSPS Land Title Survey of the Real Property), excluding invasive investigations of the land or improvements thereon; except that any such entry shall be coordinated with Seller date hereof and Seller’s property manager or other agent of Seller in control of the Property, up to and shall be conducted in such a manner as to not materially interfere with the on-going operation of the Property. Any damage caused to the Property in connection with any inspection, test, or study shall be promptly and fully repaired by Buyer and the Property returned to its prior condition, all at Buyer’s cost, which obligation shall survive any termination of this Agreement. In no event shall Buyer, prior to the Close of Escrow, indicate in any way that Buyer owns or holds any other rights of any nature in the Property or any portion thereof, or that Buyer is in any manner acting on behalf of Seller. Buyer shall keep the Property free and clear of any mechanic’s liens or materialmen’s liens arising out of any of Buyer’s activities or those of its agents and representatives, which obligation shall survive any termination of this Agreement. Not less than including two (2) Business Days prior to the Closing Date (or until earlier termination of this Agreement) but subject to the other provisions of this Section 6.6 and the obtaining of any work being conducted required consents from any Persons, Seller shall make the Records available to Buyer in an online virtual data room, at Buyer’s sole risk, cost and expense, but only to the extent such Records are in Seller’s or its Affiliates’ possession or control, relate to the Purchased Assets and are accessible to Buyer pursuant to the terms of this Agreement. Seller shall have no obligation to provide Buyer such access to any Records that Seller cannot legally provide Buyer because of third-party restrictions on Seller after Seller has made a reasonable attempt to obtain the Real Property by or for the benefit waiver of such restriction. Buyer, which work could and any Person acting on its behalf, shall keep all Records obtained confidential through the Closing Date and as otherwise contemplated in the Confidentiality Agreement dated January 25, 2016, by and betweeen Consol Energy Inc. and Buyer (the “Confidentiality Agreement”); provided, however, if the Closing occurs, such Confidentiality Agreement shall only remain in force and effect to the extent any confidential information otherwise protected under such Confidentiality Agreement does not relate to the Purchased Assets. Buyer’s inspection of the Records and any additional information provided by Seller relating to the Purchased Assets may be limited by Seller to prevent the basis for violation of the filing obligation of confidence or any contractual commitment of Seller to a mechanicThird Party. Buyer shall ensure that Buyer’s lien claim against authorized representatives comply with the Real Property if such work were not duly paid forprovisions of this Section 6.6, the said Confidentiality Agreement, and any other confidentiality agreements in effect. Upon termination of this Agreement without Closing, Buyer shall obtain destroy any and all physical copies and delete permanently any and all digital copies of Records and background materials together with any and all of Buyer’s notes and work papers prepared by or on behalf of Buyer in connection with its due diligence investigation, and upon Seller’s written consent request, an officer of Buyer will certify as to the destruction thereof; provided, however, Buyer shall be entitled to keep one copy of all such Records, materials, notes and shall allow Seller to post such notices of non-responsibility with respect thereto as Seller may deem appropriate. Further, except work papers solely for the mere discovery of existing conditions on or affecting the Property or purpose of, and to the extent arising from required for, legal and compliance purposes; and Execution Version (b) Seller hereby consents to Buyer’s on-site, non-invasive inspections of the active negligence Purchased Assets, upon advance written notice to Seller and at Buyer’s sole risk and expense. During any such inspection, Buyer agrees not to interfere in any manner with the normal use of the Purchased Assets and agrees to comply with all Seller’s requirements and safety policies of which it has notice. If Buyer or willful misconduct any Person acting on its behalf prepares a written assessment of any Purchased Asset, Buyer shall, upon request of Seller, furnish a copy thereof to Seller. The Parties shall keep any such assessment confidential. Any and all on-site inspections conducted by Buyer hereby pursuant to this Section 6.6(b) must comply with Seller’s third-party access policy, a copy of which will be provided to Buyer in advance of such inspections upon request. In accordance with Section 10.2, Buyer agrees to indemnify, defend defend, and hold harmless (including reasonable attorneys’ fees) Seller harmless from and against any and all loss, cost, liability or expense arising out of the acts or omissions of Buyer and/or its agents or representatives in connection Indemnified Parties with any respect to such entry, inspection, test, study or other activity, including without limitation all legal expenses reasonably incurred by Seller in connection therewith. The indemnity provided herein shall survive the Close of Escrow and any termination of activities conducted under this Agreement and shall not be limited by the insurance required to be maintained under Paragraph 4(e)Section 6.6.

Access by Buyer. Subject From the date hereof through the Closing, Seller shall permit (and shall cause its Representatives to permit) Buyer and its Representatives to have access (including the right to make copies of documents) at reasonable times within normal business hours, to all personnel, books, records (including Tax records), Contracts, properties, Assets, offices, customers and suppliers of the Company as may be reasonably requested by Buyer, and to discuss the business of the Company with such members of management, officers, counsel and accountants of or for the Company as Buyer and its Representatives may reasonably request. Any information furnished to Buyer or which Buyer receives in exercising its rights pursuant to this Section 6.2 shall be subject to the rights terms of tenants and the requirements of Paragraph 4(e)Section 6.5 hereof; provided, at Buyer’s sole cost and expensehowever, Buyer and Buyer’s agents and representatives shall have the right, upon no less than one that (1a) Business Day’s prior notice to Seller, to enter upon the Real Property at all reasonable times in order to conduct such inspections, tests or studies as Buyer may deem appropriate (including, without limitation, for the preparation of an ALTA/NSPS Land Title Survey of the Real Property), excluding invasive investigations of the land or improvements thereon; except that any such entry shall be coordinated with Seller and Seller’s property manager or other agent of Seller in control of the Property, and investigation shall be conducted in such a manner as not to not materially interfere unreasonably with the on-going operation conduct of Seller’s business, (b) Seller shall not be required to take any action which would constitute a waiver of the Property. Any damage caused to the Property attorney-client privilege if Seller determines in connection good faith that any requested disclosure would cause any such waiver, and (c) Seller need not supply Buyer with any inspectionaccess or information which Seller is under a legal obligation not to supply if Seller determines in good faith that any requested disclosure would cause a breach of such legal obligation; provided, test, or study shall be promptly and fully repaired by Buyer and the Property returned to its prior condition, all at Buyer’s cost, which obligation shall survive any termination of this Agreement. In no event shall Buyer, prior to the Close of Escrow, indicate in any way that Buyer owns or holds any other rights of any nature in the Property or any portion thereofcase of the foregoing clauses (b) and (c), or Seller shall provide Buyer with details regarding the type and nature of the information that Buyer is in any manner acting on behalf of Seller. Buyer shall keep the Property free and clear of any mechanic’s liens or materialmen’s liens arising out of any of Buyer’s activities or those of its agents and representatives, which obligation shall survive any termination of this Agreement. Not less than two prohibited from being disclosed (2) Business Days prior to any work being conducted on the Real Property by or for the benefit of Buyer, which work could be the basis for the filing of a mechanic’s lien claim against the Real Property if such work were not duly paid for, Buyer shall obtain Seller’s written consent and shall allow Seller to post such notices of non-responsibility with respect thereto as Seller may deem appropriate. Further, except for the mere discovery of existing conditions on or affecting the Property or to the extent arising from the active negligence that Seller is able to provide such details without compromising such attorney-client privilege or willful misconduct of violating such legal obligation). Without Seller’s prior written permission, Buyer hereby agrees to indemnify, defend and hold Seller harmless from and against any and all loss, cost, liability or expense arising out of the acts or omissions of Buyer and/or its agents or representatives in connection with any such entry, inspection, test, study or other activity, including without limitation all legal expenses reasonably incurred by Seller in connection therewith. The indemnity provided herein shall survive the Close of Escrow and any termination of this Agreement and Representatives shall not be limited entitled to conduct any intrusive environmental investigation, including any collection of samples of surface or subsurface soil, surface water, groundwater, wastewaters, building materials or any other environmental media. The investigation contemplated by this Section 6.2 shall not affect or otherwise diminish or obviate in any respect, or affect Buyer’s right to rely upon, any of the insurance required to be maintained under Paragraph 4(e)representations, warranties or covenants contained in this Agreement or the indemnification rights of the Buyer Indemnified Parties contained in this Agreement.

Access by Buyer. Subject to the rights of tenants Tenants and the requirements of Paragraph 4(e14(b), at Buyer’s sole cost and expense, Buyer and Buyer’s agents and representatives shall have the right, upon no less than one (1) Business Day’s prior notice to Seller, right to enter upon the Real Property at all reasonable times in order to conduct such inspections, tests or studies as Buyer may deem appropriate (including, without limitation, for the preparation of an ALTA/NSPS Land Title Survey of the Real Property)appropriate, excluding invasive investigations of the land Land or improvements Improvements thereon; except that any such entry shall be coordinated with Seller and Seller’s property manager or other agent of Seller in control of the Property, and shall be conducted in such a manner as to not materially interfere with cause the least disruption possible in the on-going operation of the Property. Any damage caused to the Property in connection with any inspection, test, or study shall be promptly and fully repaired by Buyer and the Property returned to its prior condition, all at Buyer’s cost, which obligation shall survive any termination of this Agreement. In no event shall Buyer, prior to the Close of Escrow, indicate in any way that Buyer owns or holds any other rights of any nature in the Property or any portion thereof, or that Buyer is in any manner acting on behalf of Seller. Buyer shall keep the Property free and clear of any mechanic’s liens or materialmen’s liens arising out of any of Buyer’s activities or those of its agents and representatives, which obligation shall survive any termination of this Agreement. Not less than two one (21) Business Days business day prior to any work being conducted on the Real Property by or for the benefit of Buyer, which work could be the basis for the filing of a mechanic’s lien claim against the Real Property if such work were not duly paid for, Buyer shall obtain Seller’s written consent (not to be unreasonably withheld) and shall allow Seller to post such notices of non-responsibility with respect thereto as Seller may deem appropriate. Further, except for the mere discovery of existing conditions on or affecting the Property or to the extent arising from the active negligence or willful misconduct of Seller, Buyer hereby indemnifies and agrees to indemnify, defend and hold Seller harmless from and against any and all loss, cost, liability or expense to the extent arising out of the acts or omissions of Buyer and/or or its agents or representatives in connection with any such entry, inspection, test, study or other activityactivities, including without limitation all legal expenses reasonably incurred by Seller in connection therewith. The indemnity provided herein shall survive the Close of Escrow and any termination of this Agreement and shall not be limited by the insurance required to be maintained under Paragraph 4(e14(b).