Access and Confidentiality. (a) From the date hereof to the Closing, subject to any Requirement of Law and Sections 6.3(b) and (c), each Party shall, and shall cause its Affiliates to, permit the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related to the Transactions, to their respective properties, premises, facilities, employees and representatives and books and records, including all computer tapes and similarly stored data, but only to the extent that such access does not unreasonably interfere with the business of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (and their respective Affiliates), as the case may be, and each Party shall direct its employees, agents and representatives, and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully with the other Party and its representatives; provided that the foregoing shall not require (i) either Party or its Affiliates to (A) permit any inspection, or to disclose any information, that would result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or any of its respective Affiliates unrelated to the Transactions or (B) violate any obligations of either Party or its Affiliates to any third party with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) or (ii) any disclosure by a Party or any of its Affiliates that would reasonably be expected, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilege. (b) From and after the Closing, except in connection with the activities contemplated by the Related Agreements or as provided therein, neither Party shall, and shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose to any other Person or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) to the extent required pursuant to the Requirements of Law, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other Party. (c) All Confidential Information provided or obtained in connection with the Transactions (including pursuant to subsection (a) above) will be held in accordance with the Confidentiality Agreement, dated May 20, 2005 (the “Confidentiality Agreement”); provided that, in the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern. (d) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required to permit the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel. (e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege. (f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers. (g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
Appears in 2 contracts
Sources: Transaction Agreement (Citigroup Inc), Transaction Agreement (Legg Mason Inc)
Access and Confidentiality. (a) From Upon reasonable notice, Seller shall afford Buyer and its representatives (including, without limitation, its independent public accountants and counsel) reasonable access during regular business hours from the date hereof until the Closing to any and all of the premises, properties, contracts, books, records and data of or relating to the ClosingBusiness and the Company and Sub, subject to any Requirement of Law and Sections 6.3(b) and (c), each Party Seller shall, and shall cause its Affiliates to, permit the other Party Company and its representatives Sub to have reasonable access, furnish to Buyer during regular business hours that period all documents and upon reasonable advance notice for purposes copies of documents and information concerning the Business as Buyer reasonably related to the Transactions, to their respective properties, premises, facilities, employees and representatives and books and records, including all computer tapes and similarly stored data, but only to the extent that such access does not unreasonably interfere with the business of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (and their respective Affiliates), as the case may be, and each Party shall direct its employees, agents and representatives, and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully with the other Party and its representatives; provided that the foregoing shall not require (i) either Party or its Affiliates to (A) permit any inspection, or to disclose any information, that would result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or any of its respective Affiliates unrelated to the Transactions or (B) violate any obligations of either Party or its Affiliates to any third party with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) or (ii) any disclosure by a Party or any of its Affiliates that would reasonably be expected, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilegerequest.
(b) From and after the ClosingClosing Date: (i) Seller shall permit Buyer, except the Company and their respective affiliates and representatives reasonable access, during reasonable business hours and at Buyer's expense, to the relevant books and records (including all relevant tax returns and related work papers) of Seller in existence at the Closing Date relating to the Business or the Company or Sub (ii) Seller shall provide such information to Buyer or the -34- 39 Company as it may reasonably request in connection with the activities contemplated by Business prior to the Related Agreements Closing Date; and (iii) Seller shall use its reasonable efforts to cause its independent accountants to consult with Buyer and the Company, and an independent auditor of Buyer or as provided thereinthe Company, neither Party shalland to permit Buyer and the Company, and an independent auditor of Buyer or the Company, to examine work papers of such accountant of Seller relating to the Business or the Company or Sub; PROVIDED that Seller shall not be required to maintain any records relating to the Business for a period of more than five (5) years from the Closing.
(c) Buyer shall hold, and shall cause its respective Affiliates (includingrepresentatives to hold, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries all such information and documents and all other information and documents delivered pursuant to this agreement confidential and, in if the case of Citigrouptransactions contemplated by this Agreement are not consummated for any reason, the PC/CM Subsidiariesshall return to Seller all such information and documents and any copies as soon as practicable and not disclose any such information (that has not previously been disclosed by a party other than Buyer, its affiliates or representatives) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose to any other Person or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) third party unless required to the extent required do so pursuant to the Requirements of Law, in any report, statement, testimony a request or other submission order under applicable laws and regulations or pursuant to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, a subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as process. Buyer's obligations under this Section shall survive the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions termination of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other PartyAgreement.
(c) All Confidential Information provided or obtained in connection with the Transactions (including pursuant to subsection (a) above) will be held in accordance with the Confidentiality Agreement, dated May 20, 2005 (the “Confidentiality Agreement”); provided that, in the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern.
(d) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required to permit the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Hmi Industries Inc), Stock Purchase Agreement (Hmi Industries Inc)
Access and Confidentiality. (a) From Except as otherwise provided in this Agreement, Purchaser shall not contact any of the date hereof to Employees, Depositors, customers or suppliers of the ClosingBranches, subject to any Requirement of Law and Sections 6.3(b) and (c), each Party shall, and shall cause its Affiliates to, permit or otherwise inspect the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related to the Transactions, to their respective properties, premises, facilities, employees and representatives and books and records, including all computer tapes and similarly stored data, but only to the extent that such access does not unreasonably Branch facilities or interfere with the business of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (Seller in any way except with the written consent of Seller, which shall not be unreasonably withheld. After the date hereof and their respective Affiliates)until the Closing Date, as the case may beSeller shall afford to Purchaser and its officers, and each Party shall direct its employees, authorized agents and representativesrepresentatives reasonable access to the personnel, properties, books, records, contracts, documents, files (including loan files) and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully with other information at the other Party and its representatives; provided that the foregoing shall not require (i) either Party or its Affiliates to (A) permit any inspectionBranches, or to disclose any information, that would result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or any of its respective Affiliates unrelated relating to the Transactions or (B) violate any obligations Assets, the Employees, the Assumed Contracts and the Deposits. Seller shall furnish Purchaser with such additional financial and operating data and other information about its business operations at the Branches as may be reasonably necessary for the orderly transfer of either Party or its Affiliates to any third party with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain business operations of the consent of such third party to such inspection or disclosure) or (ii) any disclosure by a Party or any of its Affiliates that would reasonably be expected, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilegeBranches.
(b) From and after the Closing, except in connection with the activities contemplated by the Related Agreements or as provided therein, neither Party shallEach party to this Agreement shall hold, and shall cause its respective Affiliates (includingdirectors, officers, employees, agents, consultants and advisors to hold, in the case of ▇▇▇▇ ▇▇▇▇▇strict confidence, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose unless disclosure to any other Person a bank regulatory authority is necessary or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) to the extent required pursuant to the Requirements of Law, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other Party.
(c) All Confidential Information provided or obtained in connection with the Transactions (including pursuant to subsection (a) above) will be held in accordance with the Confidentiality Agreement, dated May 20, 2005 (the “Confidentiality Agreement”); provided that, in the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern.
(d) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, desirable in connection with any Regulatory Approval (in which case Purchaser shall take such steps as are requested by Seller to request and (Bthat the Information be afforded confidential treatment) neither Party shall be required or unless compelled to permit the foregoing activities that would (x) result disclose by Judicial or administrative process, or in the disclosure written opinion of its counsel, by other requirements of law or the applicable requirements of any trade secrets of third partiesregulatory agency or relevant stock exchange, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or all non-public records, books, contracts, instruments, computer data and other data and information (ycollectively, "Information") violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist concerning the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered party furnished it by such other Party in connection with such suit, claim, action, proceeding party or investigation and its representatives pursuant to this Agreement (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only except to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that information can be shown to have been (Aa) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred previously known by such other Party in connection with any such request and party on a non-confidential basis, (Bb) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure public domain through no fault of such party or (c) later lawfully acquired from other sources by the party to which it was furnished), and neither party shall release or disclose such Information to any trade secrets of third partiesother person, or any trade secrets of either Party or of any of their respective Affiliates unrelated except its auditors, attorneys, financial advisors, bankers, other consultants and advisors, and to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counselextent permitted above, to have the effect of causing the waiver of any attorney-client privilegeIRS agents, bank regulatory authorities and other applicable governmental authorities.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (Intrust Financial Corp /)
Access and Confidentiality. (a) From the date hereof to until the Closingearlier of the Closing and termination of this Agreement in accordance with its terms, subject to any Requirement of Law and Sections 6.3(b) and (c)applicable Law, each Party shall(i) of Sellers, on the one hand, and shall cause its Affiliates toPurchaser, on the other, will permit the other Party and its their respective representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related to the Transactionsconsistent with this Agreement, to their respective properties, premises, facilities, employees and representatives and books and records, including all computer tapes and similarly stored data, but only records to the extent that such access does not unreasonably interfere with related to the business transactions contemplated by this Agreement or by the Related Agreements, (ii) Parent or Purchaser, as applicable, shall direct its respective employees, agents and representatives and shall cause the employees, agents and representatives of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (and their its respective Affiliates), to cooperate fully with Purchaser or Sellers, as the case may be, and its respective representatives to the extent related to the transactions contemplated by this Agreement or by the Related Agreements and (iii) Sellers shall, and shall cause their Affiliates to, furnish promptly to Purchaser a copy of (x) each Party regulatory report, schedule, form, registrations and other documents (and any amendment with respect thereto) filed with any Governmental Authority to the extent related to the Business, (y) the internal or external reports related to the Business and (z) all other information concerning the Business as Purchaser may reasonably request; provided, however, that nothing herein shall direct obligate any Seller or any Acquired Subsidiary or any of their respective Affiliates to take any actions that would (i) unreasonably interrupt or interfere with the normal course of their businesses or (ii) result in any waiver of attorney-client privilege or violate any Laws or the terms of any Contract to which Seller, any Acquired Subsidiaries or any of their Affiliates is a party or to which any of their respective assets are subject; provided, further, that prior to the expiration of any waiting period under the HSR Act and other similar Law applicable to the transactions contemplated by this Agreement, Purchaser and its employeesrepresentatives shall only be permitted such reasonable access which, agents and representativesin Seller's discretion, after consultation with counsel, is appropriate during such review process. Purchaser shall comply, and shall cause its Affiliates representatives to comply, with all safety, health and their employeessecurity rules applicable to the premises being visited. In each case, agents Purchaser and representativeseach Seller, to cooperate fully as applicable, and its respective representatives shall comply with the other Party and its representatives; provided that the foregoing shall not require (i) either Party or its Affiliates to (A) permit any inspection, or to disclose any information, that would result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or any of its respective Affiliates unrelated to the Transactions or (B) violate any confidentiality obligations of either Party or its Affiliates to any third party with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) or (ii) any disclosure by a Party or any of its Affiliates that would reasonably be expected, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilegecontained herein.
(b) From and after the Closing, except in connection with the activities contemplated by the Related Agreements or as provided therein, neither Party shall, and shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose to any other Person or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) In addition to the extent required pursuant to the Requirements of Lawconfidentiality arrangements contained herein, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such all information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other Party.
(c) All Confidential Information provided or obtained in connection with the Transactions transactions contemplated by this Agreement (including pursuant to subsection (a) above) will be held by Purchaser in accordance with the Confidentiality Non-Disclosure Agreement, dated May 20October 13, 2005 2011, as amended, between Purchaser and Parent (the “Confidentiality "Non-Disclosure Agreement”"); provided that, in . In the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Non-Disclosure Agreement, the terms of this Agreement will govern.
(dc) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, Each party hereto shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required to permit the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records and all information relating to the accounting, business and financial affairs related that are retained by Parent or any of its Affiliates or obtained by Purchaser hereunder, as the case may be, which information relates to the CAM Business in a manner reasonably consistent with past practiceBusiness, the Acquired Assets or the Acquired Subsidiaries prior to the Closing, for a period of not less than seven five (5) years following after the Closing Date Date, or for any longer period as may be (Ai) required pursuant to the Requirements of Law or by any Governmental Authority or (Bii) reasonably necessary with respect to the prosecution or defense of any audit or other legal action that is then pending or threatened or audit and (ii) upon reasonable noticewith respect to which the requesting Party has notified the other Party as to the need to retain such books, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and recordsrecords or information. Notwithstanding the foregoing provisions of this Section 6.3(e6.2(c), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following . After the Closing Date or for any longer period as may be (ADate, each Party shall, and shall cause its Subsidiaries to, permit the other Party and their respective representatives to have reasonable access to, and to inspect and copy, all materials referred to in this Section 6.2(c) required pursuant and to meet with officers and employees of the Requirements of Law or any Governmental Authority or (B) reasonably necessary other Party and its Subsidiaries on a mutually convenient basis in order to obtain explanations with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hourssuch materials, to obtain additional information, to call such books officers and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention employees as witnesses and sharing of Tax Returns and Tax work papersfor any other reasonable business purpose.
Appears in 1 contract
Access and Confidentiality. (a) From Until the date hereof Closing Date, upon reasonable prior notice and subject to applicable Requirements of Law relating to the Closingexchange of information, subject to any Requirement of Law the Parent and Sections 6.3(b) the Bank will and (c), each Party shall, and shall will cause its Affiliates DAF to, permit the other Party Purchaser and its authorized representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related consistent with this Agreement (including reasonable access to the Transactionsservicing reports, systems and procedures of the Bank and DAF), to their respective propertiesthe personnel (including the Employees), premisesproperties and financial Books and Records relating to the Business, facilities, employees and representatives and books and records, including all computer tapes and similarly stored data, but only to the extent that such access does not unreasonably interfere with the business of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (the Sellers; provided, that the Purchaser and their respective Affiliates), as the case may be, and each Party shall direct its employees, agents and representatives, and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully such representatives comply with the other Party confidentiality obligations contained herein and its representativesin the Confidentiality Agreement; provided and provided, further that the foregoing shall not (1) require (i) either Party or its Affiliates the Sellers to (A) permit any inspection, or to disclose any information, that in their reasonable judgment would result in the disclosure of any trade secrets of third parties, parties or any trade secrets of either Party the Sellers or any of its respective their Affiliates unrelated to the Transactions Business or (B) violate any obligations of either Party or its Affiliates the Sellers to any third party with respect to confidentiality (provided that if the applicable Party Sellers shall have used its commercially reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) disclosure or (ii2) require any disclosure by a Party or any of its Affiliates the Sellers that would reasonably be expectedcould, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilege.
(b) From and after If this Agreement is terminated, the ClosingPurchaser, except at its own expense, will promptly deliver (without retaining any copies) to the applicable Seller or (at the Sellers' option) confirm in writing to the Sellers that it has completely destroyed, all information furnished to the Purchaser or its representatives by the Sellers or any of their agents, employees or representatives in connection with this Agreement, whether so obtained before or after the activities execution hereof, and all analyses, compilations, forecasts, studies or other documents prepared by the Purchaser or its representatives that contain or reflect any such information. The Purchaser will cause any information so obtained to be kept confidential and will not use, or permit the use of, such information in its business or in any other manner or for any other purpose except as contemplated by the Related Agreements or as provided therein, neither Party shall, and shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose to any other Person or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) to the extent required pursuant to the Requirements of Law, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other PartyAgreement.
(c) All Confidential Information In addition to the confidentiality arrangements contained herein, all information provided or obtained in connection with the Transactions transactions contemplated by this Agreement and by the Ancillary Agreements (including pursuant to subsection clause (a) above) will be held by the Purchaser in accordance with the Confidentiality Agreement, dated May 20, 2005 Agreement between the Purchaser and the Parent (the “"Confidentiality Agreement”"); provided that, in . In the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern.
(d) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party The Sellers and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its their Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required entitled to permit the foregoing activities that would (x) result in the disclosure specific performance of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), 5.3 and the provisions of Article VIII shall govern the preservationConfidentiality Agreement, retention and sharing of Tax Returns and Tax work papersin addition to any other remedies that they may have at law or in equity.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
Appears in 1 contract
Sources: Purchase, Sale and Servicing Transfer Agreement (Dillards Inc)
Access and Confidentiality. (a) From Except as otherwise provided in this Agreement, Purchaser shall not contact any of the date hereof to Employees, depositors, customers or suppliers of the ClosingBranches, subject to any Requirement of Law and Sections 6.3(b) and (c), each Party shall, and shall cause its Affiliates to, permit or otherwise inspect the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related to the Transactions, to their respective properties, premises, facilities, employees and representatives and books and records, including all computer tapes and similarly stored data, but only to the extent that such access does not unreasonably Branch facilities or interfere with the business of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (Seller in any way except with the written consent of Seller. After the date hereof and their respective Affiliates)until the Closing Date, as the case may beSeller shall afford to Purchaser and its officers, and each Party shall direct its employees, authorized agents and representativesrepresentatives reasonable access to the personnel, properties, books, records, contracts, documents, files (including loan files) and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully with other information at the other Party and its representatives; provided that the foregoing shall not require (i) either Party or its Affiliates to (A) permit any inspectionBranches, or to disclose any information, that would result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or any of its respective Affiliates unrelated relating to the Transactions or (B) violate any obligations Assets, the Employees, the Assumed Contracts and the Deposits. Seller shall furnish Purchaser with such additional financial and operating data and other information about its business operations at the Branches as may be reasonably necessary for the orderly transfer of either Party or its Affiliates to any third party with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain business operations of the consent of such third party to such inspection or disclosure) or (ii) any disclosure by a Party or any of its Affiliates that would reasonably be expected, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilegeBranches.
(b) From and after the Closing, except in connection with the activities contemplated by the Related Agreements or as provided therein, neither Party shallEach party to this Agreement shall hold, and shall cause its respective Affiliates (includingdirectors, officers, employees, agents, consultants and advisors to hold, in the case of ▇▇▇▇ ▇▇▇▇▇strict confidence, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose unless disclosure to any other Person or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) to the extent required pursuant to the Requirements of Law, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates bank regulatory authority is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other Party.
(c) All Confidential Information provided or obtained in connection with the Transactions (including pursuant to subsection (a) above) will be held in accordance with the Confidentiality Agreement, dated May 20, 2005 (the “Confidentiality Agreement”); provided that, in the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern.
(d) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any Regulatory Approval (in which case Purchaser shall take such steps as are requested by Seller to request and (Bthat the Information be afforded confidential treatment) neither Party shall be required or unless compelled to permit disclose by judicial or administrative process, by other requirements of law or the foregoing activities that would (x) result in the disclosure applicable requirements of any trade secrets of third partiesregulatory agency or relevant stock exchange, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or all non-public records, books, contracts, instruments, computer data and other data and information (ycollectively, "Information") violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist concerning the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered party furnished it by such other Party in connection with such suit, claim, action, proceeding party or investigation and its representatives pursuant to this Agreement (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only except to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that information can be shown to have been (Aa) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred previously known by such other Party in connection with any such request and party on a non-confidential basis, (Bb) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure public domain through no fault of such party or (c) later lawfully acquired from other sources by the party to which it was furnished), and neither party shall release or disclose such Information to any trade secrets of third partiesother person, or any trade secrets of either Party or of any of their respective Affiliates unrelated except its auditors, attorneys, financial advisors, bankers, other consultants and advisors, and to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counselextent permitted above, to have the effect of causing the waiver of any attorney-client privilegeIRS agents, bank regulatory authorities and other applicable governmental authorities.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (Rurban Financial Corp)
Access and Confidentiality. From the date of this Agreement until the earlier of (i) the Closing Date, and (ii) the date, if any, on which this Agreement is terminated pursuant to Section 7.1:
(a) From the date hereof to the Closing, subject to any Requirement of Law and Sections 6.3(b) and (c), each Each Seller Party shall, and shall cause its Affiliates all the Target Group Companies to, permit the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related to prior written notice, (i) give the TransactionsBuyer Parties, to their respective properties, premises, facilitiesofficers, employees and representatives and books and authorized Representatives, reasonable access to each Target Group Company’s books, records, including all computer tapes officers, employees, agents, offices and similarly stored dataother assets, but only Contracts, facilities and properties, (ii) furnish to the extent that Buyer Parties, their counsel, financial advisors, auditors and other authorized Representatives such access does not unreasonably interfere with financial and operating data and other information relating to the business of Citigroup Target Group Companies, the Target Business or ▇▇▇▇ ▇▇▇▇▇ the Contributed Assets as such Persons may reasonably request and (and their respective Affiliates), as iii) instruct the case may be, and each Party shall direct its employees, agents consultants, agents, counsel, financial advisors, auditors and representativesother authorized Representatives of the Target Group Companies to reasonably cooperate with Buyer Parties in their due diligence investigation of the Target Group Companies and the Target Business, including without limitation the status of the Restructuring. Notwithstanding anything to the contrary set forth herein, the Seller Parties and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully with the other Party and its representatives; provided that the foregoing Target Group Companies shall not require (i) either Party or its Affiliates be required to (A) permit any inspectionprovide access to, or to disclose any information, that to the extent such access or disclosure would result in jeopardize the disclosure attorney-client privilege of any trade secrets of third partiesthe Seller Parties, the Target Group Companies or their respective Subsidiaries, or contravene any trade secrets of either Party or any of its respective Affiliates unrelated to the Transactions or applicable Law (B) violate any obligations of either Party or its Affiliates to any third party including with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) or (ii) any disclosure by a Party or any of its Affiliates that would reasonably be expectedcompetitively sensitive information, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilegeif any).
(b) From and after The Seller Parties shall cause the ClosingTarget Group Companies to give prompt written notice to the Buyer, except (i) of any notice or other communication received by the Target Group Companies or any Seller Party from any Governmental Authority in connection with this Agreement or the Contemplated Transactions, or from any Person alleging that the consent of such Person (or another Person) is or may be required in connection with the activities contemplated by the Related Agreements or as provided thereinContemplated Transactions, neither Party shall, and shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose to any other Person or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) to the extent required pursuant to the Requirements of Law, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigationAction commenced or, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements knowledge of Lawthe Seller Parties, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Partythreatened against, any of its Affiliates Target Group Company, any Seller Party or their respective personnel Subsidiaries, in each case arising from or relating to the Contemplated Transactions, or (including each of its respective Affiliates’ accountants, legal advisers and other professional advisersiii) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information upon becoming aware of the other Partyoccurrence or impending occurrence that individually or in the aggregate, it shall promptly return such Confidential Information to the other Partywould have a Material Adverse Effect.
(c) All Confidential Information provided If, after the date hereof, any Party becomes aware of any facts, events or obtained in connection with the Transactions (including pursuant to subsection (a) above) will be held in accordance with the Confidentiality Agreementcircumstances that have, dated May 20, 2005 (the “Confidentiality Agreement”); provided that, individually or in the event aggregate, resulted in any condition set forth in ARTICLE III to become incapable of a conflict or inconsistency between being satisfied prior to the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern.
Long Stop Date (d) Following the Closing, subject after giving effect to any Requirement of Lawapplicable cure period), each such Party will allow shall promptly give the other Party and its representatives to have reasonable accessParties a written notice, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with setting forth therein (i) the preparation of a Party’s accounting recordsrelevant facts, events or with any audits conducted by a Partycircumstances, (ii) any suitthe condition(s) which such Party believes has or have, claimas a result, action, proceeding or investigation relating become incapable of being satisfied prior to the CAM Business or Long Stop Date. Upon such notice, the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as Parties shall discuss in good faith whether the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required to permit the foregoing activities that would (x) result in the disclosure relevant conditions have indeed become incapable of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated being satisfied prior to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably Long Stop Date and, if so, whether such condition will be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to waived. Notwithstanding the foregoing, following the Closing and subject nothing in this Section 5.1(c) shall be deemed to obligate any Requirement of LawParty to waive any condition set forth in ARTICLE III, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to granted or withheld at the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigrouprelevant Party’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work paperssole discretion.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
Appears in 1 contract
Sources: Share Purchase Agreement (JOYY Inc.)
Access and Confidentiality. (a) From Until the date hereof Closing Date, upon reasonable prior notice and subject to applicable Requirements of Law relating to the Closingexchange of information, subject to any Requirement of Law and Sections 6.3(b) and (c), each Party shall, and shall cause its Affiliates to, the Company Entities will permit the other Party Purchaser and its the Purchaser’s authorized representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related consistent with this Agreement, to the Transactionspersonnel (including the employees, and shall instruct such personnel to their respective propertiescooperate with such party), premises, facilities, employees and representatives properties and books and recordsrecords relating to the Business (including reasonable access to the servicing reports, including all computer tapes systems and similarly stored dataprocedures of Company Bank), but only to the extent that such access does not unreasonably materially interfere with the business of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (such party; provided, that the party requiring such access complies with the confidentiality obligations contained herein and their respective Affiliates)in the Credit Card Program Agreement and in the Confidentiality Agreement, dated as of July 22, 2014, by and between The Toronto-Dominion Bank, on behalf of itself and its subsidiaries, including the case may bePurchaser, and each Party shall direct its employeesNordstrom, agents and representativesCompany Bank, LLC, and shall cause its Affiliates NCI (the “Confidentiality Agreement”); and their employeesprovided, agents and representativesfurther, to cooperate fully with the other Party and its representatives; provided that the foregoing shall not require (i) either Party or its Affiliates require Company Bank to (A) permit any inspection, or to disclose any informationnonpublic supervisory information for which Company Bank has not received regulatory approval to share, (ii) require a party to share information that in such party’s reasonable judgment would result in the disclosure of any trade secrets of third parties, parties or any trade secrets of either Party such party or any of its respective Affiliates unrelated to the Transactions or Business, (Biii) require a party to violate any obligations of either Party or its Affiliates such party to any third party with respect to confidentiality (provided that the applicable Party if such party shall have used its commercially reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) disclosure or (iiiv) require any disclosure by a Party or any of its Affiliates such party that would reasonably be expectedcould, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilege. If any material is withheld by the Company Entities pursuant to subclause (ii), (iii) or (iv) of the preceding sentence, upon the reasonable request by the Purchaser, the Company Entities shall use commercially reasonable efforts to find a method whereby such information may be provided to the Purchaser without so giving rise to any such waiver of privilege or such violation of Requirements of Law, provided, that the Purchaser shall provide commercial reasonable cooperation as may be reasonably requested to facilitate the provision of such information.
(b) From and after the Closing, except in connection with the activities contemplated by the Related Agreements or as provided therein, neither Party shall, and shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose to any other Person or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) to the extent required pursuant to the Requirements of Law, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order The parties hereto agree to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in Confidentiality Agreement until the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party mayClosing Date, at its sole expense, seek an appropriate protective order and/or waive in writing which time the disclosing Party’s compliance with Confidentiality Agreement shall be deemed terminated and superseded by the confidentiality provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other PartyCredit Card Program Agreement.
(c) All Confidential Information provided or obtained in connection with the Transactions (including pursuant to subsection (a) above) will be held in accordance with the Confidentiality Agreement, dated May 20, 2005 (the “Confidentiality Agreement”); provided that, in the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern.
(d) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party Each party shall be required entitled to permit the foregoing activities that would (x) result in the disclosure specific performance of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers5.1 in addition to any other remedies that they may have at law or in equity.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
Appears in 1 contract
Access and Confidentiality. (a) From Until the date hereof First Closing Date (and, with respect to the ClosingGE/Macy's Assets, until the Second Closing Date and with respect to the May Assets, following the closing of the May Merger and until the Third Closing Date), upon reasonable prior notice and subject to any Requirement applicable Requirements of Law relating to the exchange of information, FDS and Sections 6.3(b) and (c), each Party FDS Bank shall, and shall cause its Affiliates Prime to, permit the other Party Purchaser and its authorized representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related consistent with this Agreement, to the Transactions, properties and Books and Records relating to their respective properties, premises, facilities, employees and representatives and books and recordsthe Business, including all computer tapes the Master File, the FDS Cardholder List, the GE/Macy's Cardholder List and similarly stored datathe May Cardholder List, but only to the extent that such access does not unreasonably unduly interfere with the business of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (the Sellers; provided that the Purchaser and their respective Affiliates), as the case may be, and each Party shall direct its employees, agents and representatives, and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully such representatives comply with the other Party confidentiality obligations contained herein and its representativesin the Confidentiality Agreement; provided and provided, further, that the foregoing shall not (1) require (i) either Party or its Affiliates the Sellers to (A) permit any inspection, or to disclose any information, that in their reasonable judgment would result in the disclosure of any trade secrets of third parties, parties or any trade secrets of either Party the Sellers or any of its respective their Affiliates unrelated to the Transactions Business or (B) violate any obligations of either Party or its Affiliates the Sellers to any third party with respect to confidentiality (provided that if the applicable Party Sellers shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) disclosure or (ii2) require any disclosure by a Party or any of its Affiliates the Sellers that would reasonably be expectedcould, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilege.
(b) From and after If this Agreement is terminated, each party, at its own expense, shall promptly deliver (without retaining any copies) to the Closingother party or (at their option) confirm in writing to the other party that it has completely destroyed all information furnished to such party or its representatives by the other party or any of their agents, except employees or representatives in connection with this Agreement, whether so obtained before or after the activities contemplated by the Related Agreements or as provided therein, neither Party shallexecution hereof, and all analyses, compilations, forecasts, studies or other documents prepared by such party or its representatives that contain or reflect any such information; provided, however, that the foregoing shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose apply to any other Person or otherwise use any Confidential Information of the other Party; provided summary analyses made by such party that a Party (or any of its Affiliates) may disclose Confidential Information such party is required to retain (i) to as part of the extent required pursuant to minutes of the Requirements proceedings of Lawits board of directors or any committee thereof, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by applicable Requirements of Law. If requested Notwithstanding the return or destruction of such information by the other Partyreceiving party and/or its agents, employees and representatives, the Party disclosing such information shall (x) exercise reasonable best effortsreceiving party and its agents, at employees and representatives will continue to be bound by its obligations hereunder and under the non-disclosing Party’s sole expense, to obtain reliable assurances that Confidentiality Agreements regarding the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, use and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure confidentiality of such as each Party uses information. Notwithstanding the foregoing provisions of this Section 6.3(b), the Purchaser shall not be required to protect its own confidential return information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information relating to the other PartyFDS Assets or the FDS Liabilities after the First Closing, the GE/Macy's Assets or the GE/Macy's Liabilities after the Second Closing, or the May Assets or the May Liabilities after the Third Closing.
(c) All Confidential Information In addition to the confidentiality arrangements contained herein, all information provided or obtained in connection with the Transactions transactions contemplated by this Agreement and by the Ancillary Agreements (including pursuant to subsection clause (a) above) will on or prior to the First Closing Date (or, with respect to information relating to the GE/Macy's Assets and GE/Macy's Liabilities, on or prior to the Second Closing Date and with respect to information relating to the May Assets and May Liabilities, on or prior to the Third Closing Date) shall be held by the Purchaser in accordance with the Confidentiality Agreement, dated May 20November 19, 2004 between Citicorp Credit Services Inc. (USA) and FDS (the "FDS Confidentiality Agreement") and the Confidentiality Agreement, dated April 26, 2005 between Citicorp Credit Services Inc. (USA) and FDS (the “"May Confidentiality Agreement”" and together with the FDS Confidentiality Agreement, the "Confidentiality Agreements"); provided that, in . In the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality AgreementAgreements, the terms of this Agreement will shall govern.
(d) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates The parties agree that monetary damages would not be a sufficient remedy for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation breach of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required to permit the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), 6.3 and the provisions of Article VIII shall govern the preservationConfidentiality Agreements, retention and sharing of Tax Returns that, in addition to all other remedies, each Party will be entitled to seek specific performance and Tax work papers.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in seek injunctive or other equitable relief as a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or remedy for any longer period as may be (A) required pursuant to the Requirements breach of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e6.3 and the provisions of the Confidentiality Agreements.
(e) From the date hereof through the First Closing Date (and with respect to the GE/Macy's Assets, through the Second Closing Date, and with respect to the May Assets, from the closing of the May Merger through the Third Closing Date), the provisions Sellers shall provide to the Purchaser on a monthly basis the reports that would be required to be provided to the Purchaser pursuant to Section 7.1 of Article VIII the Program Agreement following the Effective Date thereunder (or in the case of the May Assets, such similar existing reports as are reasonably available to FDS).
(f) From the date hereof through the Second Closing Date, the Sellers shall govern provide the preservationPurchaser reasonable prior written notice (including a description of such change) of any material changes in the credit and underwriting, retention risk management, reaging, posting, collection or operating policies and sharing procedures with respect to the Business made pursuant to the GE/Macy's Program Agreement. From the date of Tax Returns and Tax work papersthe closing of the May Merger through the Third Closing Date, the Sellers shall provide the Purchaser reasonable prior written notice describing any such material changes to be made in connection with the May Business.
Appears in 1 contract
Sources: Purchase, Sale and Servicing Transfer Agreement (Federated Department Stores Inc /De/)
Access and Confidentiality. (a) From Between the date hereof to of this Agreement and the Closing, subject Seller shall afford to any Requirement of Law Purchaser and Sections 6.3(bits officers and authorized agents and representatives reasonable access to the properties, books, records, contracts, documents, files (including loan files) and (c)other information of or relating to the Loans. In addition, each Party shall, and shall cause its Affiliates to, permit the other Party and its representatives Seller will use reasonable efforts to arrange for Purchaser to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related access to the Transactions, to their respective properties, premises, facilities, employees and representatives and books and records, including all computer tapes and similarly stored data, but only to the extent that such access does not unreasonably interfere with the business of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (and their respective Affiliates), as the case may be, and each Party shall direct its employees, agents and representatives, and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully with the other Party and its representatives; provided that the foregoing shall not require (i) either Party or its Affiliates to (A) permit any inspection, or to disclose any information, that would result in the disclosure of any trade secrets of similar information held by third parties, if any, for or any trade secrets on Seller's behalf. Purchaser and Seller each have identified a selected group of either Party or any their respective personnel that shall constitute a "transition group" who shall be available to Seller and Purchaser, respectively, at reasonable times (limited to normal operating hours) to provide information and assistance in connection with Purchaser's investigation of its respective Affiliates unrelated matters relating to the Transactions or (B) violate any obligations of either Party or its Affiliates to any third party with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) or (ii) any disclosure by a Party or any of its Affiliates that would reasonably be expected, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilegeLoans.
(b) From and after the Closing, except in connection with the activities contemplated by the Related Agreements or as provided therein, neither Party shallEach party to this Agreement shall hold, and shall cause its respective Affiliates (includingdirectors, officers, employees, agents, consultants and advisors to hold, in strict confidence, unless disclosure to a bank regulatory authority is necessary or desirable or unless compelled to disclose by judicial or administrative process or, in the case written opinion of ▇▇▇▇ ▇▇▇▇▇its counsel by other requirements of law or the applicable requirements of any regulatory agency, the CAM Subsidiaries andall non-public records, in the case of Citigroupbooks, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountantscontracts, legal advisers instruments, computer data and other professional advisersdata and information (collectively, "Information") not to, disclose to any other Person or otherwise use any Confidential Information of concerning the other Party; provided that party (or, if required under a Party (or any of its Affiliates) may disclose Confidential Information (i) to the extent required pursuant to the Requirements of Law, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply contract with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Informationa third party, such Party shall (Athird party) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that furnished it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other Party.
(c) All Confidential Information provided or obtained in connection with the Transactions (including pursuant to subsection (a) above) will be held in accordance with the Confidentiality Agreement, dated May 20, 2005 (the “Confidentiality Agreement”); provided that, in the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern.
(d) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required to permit the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding party or investigation and its representatives pursuant to this Agreement (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only except to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that information can be shown to have been (Aa) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred previously known by such other Party in connection with any such request and party on a non-confidential basis, (Bb) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure public domain through no fault of such party or (c) later lawfully acquired from other sources by the party to which it was furnished), and neither party shall release or disclose such Information to any trade secrets of third partiesother person, or any trade secrets of either Party or of any of their respective Affiliates unrelated except its auditors, attorneys, financial advisors, bankers, other consultants and advisors and, to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counselextent permitted above, to have the effect of causing the waiver of any attorney-client privilegebank regulatory authorities.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
Appears in 1 contract
Sources: Loan Purchase Agreement (First Ipswich Bancorp /Ma)
Access and Confidentiality. (a) From Between the date hereof to of this Agreement and the ClosingClosing Date, subject to any Requirement of Law and Sections 6.3(b) and (c), each Party shall, Sellers shall and shall cause its Affiliates to, permit the other Party Company to afford to Purchaser and its officers and authorized agents and representatives reasonable access to the properties, books, records, contracts, documents, files and other information of or relating to the Company. In addition, Sellers will use reasonable efforts to arrange for Purchaser to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related access to the Transactions, to their respective properties, premises, facilities, employees and representatives and books and records, including all computer tapes and similarly stored data, but only to the extent that such access does not unreasonably interfere with the business of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (and their respective Affiliates), as the case may be, and each Party shall direct its employees, agents and representatives, and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully with the other Party and its representatives; provided that the foregoing shall not require (i) either Party or its Affiliates to (A) permit any inspection, or to disclose any information, that would result in the disclosure of any trade secrets of similar information held by third parties, if any, for or any trade secrets on Sellers' behalf or for or on behalf of either Party or any the Company. Sellers shall cause personnel of its respective Affiliates unrelated the Company to the Transactions or (B) violate any obligations of either Party or its Affiliates to any third party with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) or (ii) any disclosure by a Party or any of its Affiliates that would be reasonably be expected, as a result of such disclosure, and after consultation with counselavailable during normal business hours, to have an extent not disruptive of ongoing operations, for the effect same purposes. Between the date of causing this Agreement and the waiver Closing Date, Sellers shall furnish Purchaser with such additional financial and operating data and other information about the business operations of any attorney-client privilegethe Company as Purchaser may reasonably request.
(b) From and after Each of the Closing, except in connection with the activities contemplated by the Related Agreements or as provided therein, neither Party shallparties hereto shall hold, and shall cause its respective Affiliates (includingdirectors, officers, employees, agents, consultants and advisors to hold, in the case of ▇▇▇▇ ▇▇▇▇▇strict confidence, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose unless disclosure to any other Person a regulatory authority is necessary or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) to the extent required pursuant to the Requirements of Law, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other Party.
(c) All Confidential Information provided or obtained in connection with the Transactions (including pursuant to subsection (a) above) will be held in accordance with the Confidentiality Agreement, dated May 20, 2005 (the “Confidentiality Agreement”); provided that, in the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern.
(d) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, desirable in connection with any such request and (B) neither Party shall be required Regulatory Approval or unless compelled to permit the foregoing activities that would (x) result disclose by a Proceeding or, in the disclosure written opinion of its counsel, by other requirements of law of the applicable requirements of any trade secrets of third partiesGovernmental Body all non-public records, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or books, contracts, instruments, computer data and other data and information (ycollectively, "Information") violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist concerning the other Party in the former’s defense ofparty (or, or response toif required under a contract with a third party, any suit, claim, action, proceeding or investigation (isuch third party) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered furnished it by such other Party in connection with such suit, claim, action, proceeding party or investigation and its representatives pursuant to this Agreement (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only except to the extent that such action does not unduly interfere with Information can be shown to have been (a) previously known by such party on a non-confidential basis, (b) in the business public domain through no fault of such party or (c) later lawfully acquired from other sources by the party to which it was furnished), and neither party shall release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, bankers, other consultants and advisors and, to the extent permitted above, to Governmental Bodies. Each of the cooperating Party; provided that (A) parties hereto shall not issue and shall not permit the requesting Party shall reimburse issuance of any public statement concerning the relationship of the Company to Purchaser and its Affiliates without the prior written consent of the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party parties hereto, which consent shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilegeunreasonably withheld.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
Appears in 1 contract
Sources: Stock Purchase Agreement (eTelecare Global Solutions, Inc.)
Access and Confidentiality. (a) From the date hereof to until the Closingearlier of the Closing and termination of this Agreement in accordance with its terms, subject to any Requirement of Law and Sections 6.3(b) and (c)applicable Law, each Party shall(i) of Sellers, on the one hand, and shall cause its Affiliates toPurchaser, on the other, will permit the other Party and its their respective representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related to the Transactionsconsistent with this Agreement, to their respective properties, premises, facilities, employees and representatives and books and records, including all computer tapes and similarly stored data, but only records to the extent that such access does not unreasonably interfere with related to the business transactions contemplated by this Agreement or by the Related Agreements, (ii) Parent or Purchaser, as applicable, shall direct its respective employees, agents and representatives and shall cause the employees, agents and representatives of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (and their its respective Affiliates), to cooperate fully with Purchaser or Sellers, as the case may be, and its respective representatives to the extent related to the transactions contemplated by this Agreement or by the Related Agreements and (iii) Sellers shall, and shall cause their Affiliates to, furnish promptly to Purchaser a copy of (x) each Party regulatory report, schedule, form, registrations and other documents (and any amendment with respect thereto) filed with any Governmental Authority to the extent related to the Business, (y) the internal or external reports related to the Business and (z) all other information concerning the Business as Purchaser may reasonably request; provided, however, that nothing herein shall direct obligate any Seller or any Acquired Subsidiary or any of their respective Affiliates to take any actions that would (i) unreasonably interrupt or interfere with the normal course of their businesses or (ii) result in any waiver of attorney-client privilege or violate any Laws or the terms of any Contract to which Seller, any Acquired Subsidiaries or any of their Affiliates is a party or to which any of their respective assets are subject; provided, further, that prior to the expiration of any waiting period under the HSR Act and other similar Law applicable to the transactions contemplated by this Agreement, Purchaser and its employeesrepresentatives shall only be permitted such reasonable access which, agents and representativesin Seller’s discretion, after consultation with counsel, is appropriate during such review process. Purchaser shall comply, and shall cause its Affiliates representatives to comply, with all safety, health and their employeessecurity rules applicable to the premises being visited. In each case, agents Purchaser and representativeseach Seller, to cooperate fully as applicable, and its respective representatives shall comply with the other Party and its representatives; provided that the foregoing shall not require (i) either Party or its Affiliates to (A) permit any inspection, or to disclose any information, that would result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or any of its respective Affiliates unrelated to the Transactions or (B) violate any confidentiality obligations of either Party or its Affiliates to any third party with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) or (ii) any disclosure by a Party or any of its Affiliates that would reasonably be expected, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilegecontained herein.
(b) From and after the Closing, except in connection with the activities contemplated by the Related Agreements or as provided therein, neither Party shall, and shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose to any other Person or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) In addition to the extent required pursuant to the Requirements of Lawconfidentiality arrangements contained herein, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such all information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other Party.
(c) All Confidential Information provided or obtained in connection with the Transactions transactions contemplated by this Agreement (including pursuant to subsection (a) above) will be held by Purchaser in accordance with the Confidentiality Non-Disclosure Agreement, dated May 20October 13, 2005 2011, as amended, between Purchaser and Parent (the “Confidentiality Non-Disclosure Agreement”); provided that, in . In the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Non-Disclosure Agreement, the terms of this Agreement will govern.
(dc) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, Each party hereto shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required to permit the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records and all information relating to the accounting, business and financial affairs related that are retained by Parent or any of its Affiliates or obtained by Purchaser hereunder, as the case may be, which information relates to the CAM Business in a manner reasonably consistent with past practiceBusiness, the Acquired Assets or the Acquired Subsidiaries prior to the Closing, for a period of not less than seven five (5) years following after the Closing Date Date, or for any longer period as may be (Ai) required pursuant to the Requirements of Law or by any Governmental Authority or (Bii) reasonably necessary with respect to the prosecution or defense of any audit or other legal action that is then pending or threatened or audit and (ii) upon reasonable noticewith respect to which the requesting Party has notified the other Party as to the need to retain such books, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and recordsrecords or information. Notwithstanding the foregoing provisions of this Section 6.3(e6.2(c), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following . After the Closing Date or for any longer period as may be (ADate, each Party shall, and shall cause its Subsidiaries to, permit the other Party and their respective representatives to have reasonable access to, and to inspect and copy, all materials referred to in this Section 6.2(c) required pursuant and to meet with officers and employees of the Requirements of Law or any Governmental Authority or (B) reasonably necessary other Party and its Subsidiaries on a mutually convenient basis in order to obtain explanations with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hourssuch materials, to obtain additional information, to call such books officers and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention employees as witnesses and sharing of Tax Returns and Tax work papersfor any other reasonable business purpose.
Appears in 1 contract
Access and Confidentiality. (a) From Until the date hereof Closing Date, upon reasonable prior notice and subject to applicable Requirements of Law relating to the Closingexchange of information, subject to any Requirement of Law and Sections 6.3(b(i) and (c), each Party Seller shall, and shall cause its Affiliates Pier 1 Bank to, permit the other Party Purchaser and its authorized representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related consistent with this Agreement, to the Transactions, properties and Books and Records relating to their respective properties, premises, facilities, employees and representatives and books and recordsthe Business, including all computer tapes the Master File and similarly stored datathe Cardholder List, but only to the extent that such access does not unreasonably unduly interfere with the business of Citigroup the Seller or ▇▇▇▇ ▇▇▇▇▇ Pier 1 Bank; provided that the Purchaser and such representatives comply with the confidentiality obligations contained herein and in the Confidentiality Agreement (defined below); and their (ii) Seller and Pier 1 Bank or the Purchaser, as applicable, shall direct its respective employees, agents and representatives and shall cause the employees, agents and representatives of its respective Affiliates), to cooperate fully with the Purchaser or Seller, as the case may be, and its respective representatives in accessing such items; provided, that, in each Party shall direct its employeescase, agents the Purchaser and representativesSeller, as applicable, and its respective representatives shall cause its Affiliates and their employees, agents and representatives, to cooperate fully comply with the other Party confidentiality obligations contained herein, and its representatives; provided provided, further, that the foregoing shall not (1) require (i) either Party the Seller or its Affiliates Pier 1 Bank to (A) permit any inspection, or to disclose any information, that in their reasonable judgment is prohibited or would result in the disclosure of any proprietary information or trade secrets of third partiesparties (including FACS Group, Inc.) or any trade secrets of either Party the Seller or any of its respective Affiliates unrelated to the Transactions Business or (B) violate any obligations of either Party the Seller or its Affiliates to any third party with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) or (ii2) require any disclosure by a Party the Seller or any of its Affiliates that would reasonably be expectedcould, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilege. After the Closing, Seller shall keep confidential all Personal Information it disclosed to the Purchaser and all information relating to the Business and Pier 1 Bank, except information (other than Personal Information) which; (i) is part of the public domain; (ii) becomes part of the public domain other than as a result of a breach of these provisions by Seller; (iii) was received in good faith after Closing from an independent Person who was lawfully in possession of the information free of any obligation of confidence; (iv) is released from the provisions of this agreement by the written authorization of the Purchaser, or (v) is required to be disclosed by an applicable Requirement of Law.
(b) From and after If this Agreement is terminated, each party, at its own expense, shall promptly deliver (without retaining any copies) to the Closingother party or (at their option) confirm in writing to the other party that it has completely destroyed all information furnished to such party or its representatives by the other party or any of their agents, except employees or representatives in connection with this Agreement, whether so obtained before or after the activities contemplated by the Related Agreements or as provided therein, neither Party shallexecution hereof, and all analyses, compilations, forecasts, studies or other documents prepared by such party or its representatives that contain or reflect any such information; provided, however, that the foregoing shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose apply to any other Person or otherwise use any Confidential Information of the other Party; provided summary analyses made by such party that a Party (or any of its Affiliates) may disclose Confidential Information such party is required to retain (i) to as part of the extent required pursuant to minutes of the Requirements proceedings of Lawits board of directors or any committee thereof, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by applicable Requirements of Law. If requested Notwithstanding the return or destruction of such information by the other Partyreceiving party and/or its agents, employees and representatives, the Party disclosing such information shall (x) exercise reasonable best effortsreceiving party and its agents, at employees and representatives will continue to be bound by its obligations hereunder and under the non-disclosing Party’s sole expense, to obtain reliable assurances that Confidentiality Agreement regarding the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, use and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure confidentiality of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other Partyinformation.
(c) All Confidential Information In addition to the confidentiality arrangements contained herein, all information provided or obtained in connection with the Transactions transactions contemplated by this Agreement and by the Ancillary Agreements (including pursuant to subsection clause (a) above) will on or prior to the Closing Date shall be held by the Purchaser in accordance with the Confidentiality Agreement, dated May 204, 2005 2006 between the Purchaser and Pier 1 Imports (the “Confidentiality Agreement”); provided that, in . In the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this the Confidentiality Agreement will shall govern.
(d) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates The Parties agree that monetary damages would not be a sufficient remedy for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation breach of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required to permit the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), 4.4 and the provisions of Article VIII shall govern the preservationConfidentiality Agreement, retention and sharing of Tax Returns that, in addition to all other remedies, each Party will be entitled to seek specific performance and Tax work papers.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in seek injunctive or other equitable relief as a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or remedy for any longer period as may be (A) required pursuant to the Requirements breach of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), 4.4 and the provisions of Article VIII the Confidentiality Agreement.
(e) From the date hereof through the Closing Date, Seller shall govern provide to the preservationPurchaser portfolio statistical reports, retention and sharing of Tax Returns and Tax work papersas available.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pier 1 Imports Inc/De)
Access and Confidentiality. (a) From the date hereof to the Closing, subject to any Requirement applicable Requirements of Law and Sections 6.3(bLaw, (i) and (c)each of Sellers, each Party shallon the one hand, and shall cause its Affiliates toPurchaser, on the other, will permit the other Party and its their respective representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related to the Transactionsconsistent with this Agreement, to their respective properties, premises, facilities, employees and representatives and books and records, including all computer tapes and similarly stored data, but only to the extent that such access does not unreasonably interfere with the business of Citigroup Sellers or ▇▇▇▇ ▇▇▇▇▇ (and their respective Affiliates)Purchaser, as the case may be, and only to the extent related to the transactions contemplated by this Agreement and by the Related Agreements, (ii) each Party Seller or Purchaser, as applicable, shall direct its respective employees, agents and representativesrepresentatives and shall cause the employees, agents and representatives of its respective Affiliates, to cooperate fully with Purchaser or Sellers, as the case may be, and its respective representatives and (iii) to the extent permitted by Requirements of Law, each Seller shall, and shall cause its Affiliates Subsidiaries to, furnish promptly to Purchaser a copy of (x) each material report, schedule, registration statement and their employeesother document filed by it with any Governmental Authority and (y) the internal or external reports prepared by such Seller or such Subsidiary in the ordinary course that are reasonably required by Purchaser promptly after such reports are made available to such Seller's personnel; provided that, agents in each case, Purchaser and representativeseach Seller, to cooperate fully as applicable, and its respective representatives shall comply with the other Party confidentiality obligations contained herein; and its representatives; provided provided, further, that the foregoing shall not require (i) either Party require Sears or any of its Affiliates Affiliates, on the one hand, or Purchaser or any of its Affiliates, on the other, to (A) permit any inspection, or to disclose any information, that (x) would result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party Sears or Purchaser, as the case may be, or of any of its their respective Affiliates unrelated Affiliates, unless such trade secrets are related to the Transactions transactions contemplated hereby and by the Related Agreements, or (By) violate any obligations of either Party Sears or its Affiliates Purchaser, as the case may be, to any third party with respect to confidentiality (confidentiality, provided that the applicable Party Sears or Purchaser, as applicable, shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) disclosure or (ii) require any disclosure by a Party Sears or Purchaser, as the case may be, or any of its Affiliates their respective Affiliates, that would reasonably be expected, as a result of such disclosure, and after consultation with in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(b) From and after To the Closing, except in connection with the activities contemplated fullest extent not prohibited by the Related Agreements or as provided therein, neither Party shall, and shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose to any other Person or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) to the extent required pursuant to the Requirements of Law, in any reportfurtherance of the terms of Section 6.2(a) and subject to the provisos set forth therein, statementfrom the date hereof to the Closing Date, testimony or other submission (i) senior officers of the Business and of the credit card business of Purchaser shall meet on a regular basis (no less than bi-weekly) to any Governmental Authority or review the financial performance and operational affairs of the Business to achieve an orderly integration of the Business by Purchaser as of the Closing, and (ii) no later than 10 Business Days from the date hereof, Sellers and Purchaser shall each appoint three officers with knowledge of, and experience in, the Business to comprise a transition team (the "Transition Team") which shall meet on a regular basis to discuss and implement reasonable steps necessary to achieve an orderly integration of the Business by Purchaser as of the Closing and to attempt to minimize Purchaser's reliance on interim services from Sellers following the Closing. Prior to the Closing, the Transition Team shall identify which Business Employees shall be retained by Sellers ("Retained Business Employees") and shall update Schedule 1.1
(a) accordingly. The Transition Team shall also establish a transition of the responsibilities of the Retained Business Employees to Purchaser employees and a transition of the services of the Retained Business Employees to other Seller businesses in order to comply ensure an orderly transition. The Transition Team shall negotiate in good faith the terms of the Transition Services Agreement which shall incorporate the terms and provisions set forth on Exhibit B, pursuant to which Sellers and their respective Affiliates shall provide to Purchaser and its Affiliates all interim services as are necessary, including the provision of shared real property and services provided by third parties under certain Contracts that are Retained Assets, in combination with any Requirement the Acquired Subsidiary Stock, the Purchased Interests, the Business Employees and the rights of LawPurchaser and its Affiliates under the other Related Agreements, or in response to any summonsallow Purchaser to conduct the Business as it will be conducted immediately prior to the Closing. Such Transition Services Agreement shall provide, subpoena or among other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇things, that Sears and its Affiliates will (i) facilitate the implementation and administration of employee welfare benefits for Continuing Business Employees, which shall be sponsored and maintained by Purchaser as the case may beemployer thereunder, for the Benefits Transition Period (as defined in the course of any litigationnext sentence), investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (Bii) if, in continue to provide payroll services with respect to Continuing Business Employees. Purchaser shall bear all direct and indirect costs associated with providing such transitional arrangement with respect to employee welfare benefits and payroll services. The Benefits Transition Period shall mean the absence period commencing on the Closing Date and concluding on the later of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that 30th day following the Confidential Information so disclosed will be accorded confidential treatment Closing Date or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agreesDecember 31, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other Party2003.
(c) All Confidential Information In addition to the confidentiality arrangements contained herein, all information provided or obtained in connection with the Transactions transactions contemplated by this Agreement (including pursuant to subsection (a) aboveabove but excluding any information to the extent relating primarily to the Credit Card Business or the Financial Products Business acquired hereunder by Purchaser) will be held by Purchaser in accordance with the Confidentiality AgreementAgreements, dated April 11, 2003 and May 2019, 2005 2003, between Purchaser and Sears (collectively, the “"Confidentiality Agreement”"); provided that, in . In the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern. For the avoidance of doubt, the parties and their Affiliates (and any employee, representative or other agent of such Persons) shall be permitted to disclose the "tax structure" and "tax treatment" (within the meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby from and after the earliest of: (i) the date of public announcement of discussions regarding such transactions, (ii) the date of public announcement of such transactions and (iii) the date hereof.
(d) Following the Closing, subject to any Requirement of Law, each Each Party will allow the other Party hereto shall preserve and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any keep all books and records and personnel records all information relating to the CAM Business accounting, business, and financial affairs that are retained by Sears or the PC/CM Businessany of its Affiliates or obtained by Purchaser hereunder, as the case may be, which were retained information relates to the Purchased Interests, the Acquired Subsidiary Stock, the Assumed Liabilities or that portion of the Business that is conducted by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required to permit the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practiceAcquired Subsidiary, for a reasonable period of (not less than seven years following five (5) years) after the Closing Date Date, or for any longer period (i) as may be (A) required pursuant to the Requirements of Law or by any Governmental Authority or and (Bii) as may be reasonably necessary with respect to the prosecution or defense of any audit or other legal action that is then pending or threatened and (ii) upon reasonable noticewith respect to which the requesting Party has notified the other Party as to the need to retain such books, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and recordsrecords or information. Notwithstanding the foregoing provisions of this Section 6.3(e6.2(d), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
(ge) Citigroup Purchaser and its representatives shall be entitled to perform a Phase II environmental investigation (ithe "Investigation") preserve and keep all books and records relating of the New Orleans, LA facility (Sears Unit # 8636). Purchaser agrees to commence the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Investigation within ▇▇ ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the date of this Agreement. The Investigation shall be performed by a nationally recognized environmental consulting firm and Purchaser shall provide Sellers with a letter, acceptable to Sellers, expressly stating that Sellers and the Acquired Subsidiary have the right to make photocopies rely on the Investigation. Sellers shall have the right to review and comment on the scope of work for the Investigation. Sellers shall provide Purchaser and its representatives such access to the New Orleans facility as is reasonably necessary to conduct the Investigation. Purchaser and its representatives shall perform the Investigation in manner that minimizes any disruption to the Sellers' operations at ▇▇▇▇ ▇▇▇▇▇’▇ expense)the New Orleans facility. If the Investigation shows a Release in the soil or groundwater at or affecting the New Orleans facility in excess of regulatory standards for commercial or industrial property under applicable Environmental Laws, during normal business hoursthen at Sellers' irrevocable election (to be confirmed by written notice to Purchaser within five days following Sellers' receipt of the written findings of the Investigation):
(i) Sellers, as soon as reasonably practicable following receipt of the written results of the Investigation, shall (at Sellers' sole cost and to the reasonable satisfaction of Purchaser) Cleanup the soil and/or groundwater contaminated with Hazardous Materials and such books conditions shall be deemed Pre-Closing Liabilities and recordsCosts included as Retained Liabilities under Section 2.5, and further Sellers shall perform any such Cleanup in a manner that minimizes any disruption to the Purchaser's operations at the New Orleans facility. Notwithstanding In connection with the foregoing provisions of this Section 6.3(e)foregoing, the provisions parties shall agree upon a program to effectuate the Cleanup in a manner that will avoid disruption to Purchaser's operations; or
(ii) Sellers shall retain ownership of Article VIII the New Orleans property and such property shall govern be deemed a Retained Asset under Section 2.3, in which case Purchaser, pursuant to Transition Services Agreement, shall lease the preservation, retention and sharing New Orleans property from Sellers for a period of Tax Returns and Tax work papersup to 18 months following the Closing Date.
Appears in 1 contract
Sources: Purchase, Sale and Servicing Transfer Agreement (Sears Roebuck & Co)
Access and Confidentiality. (a) From the date hereof to the Closing, subject to any Requirement of Law and Sections 6.3(b6.2(b) and (c6.2(c), each Party Newquay shall, and shall cause its Affiliates to, permit the other Party Pluto and its financial advisors, business consultants, legal counsel, accountants and other agents and representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related to the Transactions, to their respective properties, premises, facilities, employees and representatives and the relevant books and records; provided, including all computer tapes and similarly stored datahowever, but only that Newquay may restrict or otherwise prohibit access to any documents or information to the extent that (i) any Requirement of Law requires Newquay or its Affiliates to restrict or otherwise prohibit access to such documents or information, (ii) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege or other privilege applicable to such documents or information (in which event the Parties shall negotiate in good faith to seek alternative means to disclose such information as nearly as possible without affecting such attorney-client or such other privilege, including entry into a joint defense agreement) or (iii) access to a Contract to which Newquay or any of its Affiliates is a Party or otherwise bound would violate or cause a default under, or give a third party the right to terminate or accelerate the rights under, such Contract; provided, further, that such access shall be under the supervision of the designated personnel or representatives of Newquay or its Affiliates (provided that no such supervision shall restrict or limit the scope and extent of rights of a Party pursuant to this Section 6.2(a)); provided, further, that, to the extent practicable, all requests for information made pursuant to this Section 6.2(a) shall be directed to such Person or Persons as may be designated by Newquay, and Pluto shall use its reasonable best efforts not to directly contact any other officer, director, employee, agent or representative of Newquay or its Affiliates without the prior approval of such designated Person(s); provided, further, that no information or knowledge obtained by Pluto in any investigation conducted pursuant to the access contemplated by this Section 6.2(a) shall affect or be deemed to modify any representation or warranty of Newquay set forth in this Agreement or otherwise impair the rights and remedies available to the Party requesting access hereunder; provided, further, that Newquay may limit such access to the extent Newquay reasonably determines, in light of the COVID-19 virus or any COVID-19 Measures, that such access would jeopardize the health and safety of any employee or representative of Newquay or its Affiliates (in which event the Parties shall negotiate in good faith to seek alternative means to disclose such information as nearly as possible without jeopardizing the health and safety of any employee or representative of Newquay or its Affiliates, including by converting any such information to digital format). In the event that Newquay does not provide access or information in reliance on the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Pluto in a way that would not violate the applicable Requirement of Law or Contract, waive such a privilege or jeopardize the health and safety of any employee or representative of Newquay or its Affiliates. Any investigation conducted pursuant to the access contemplated by this Section 6.2(a) shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (and their respective Affiliates), as the case may be, and each Party shall direct its employees, agents and representatives, and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully with the other Party and its representatives; provided that the foregoing shall not require (i) either Party or its Affiliates to (A) permit any inspection, or to disclose any information, that would result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or any of its respective Affiliates unrelated to the Transactions or (B) violate any obligations of either Party or its Affiliates to any third party with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) or (ii) any disclosure by a Party Newquay or any of its Affiliates that would reasonably or create a risk of damage or destruction to any property or assets of Newquay or any of its Affiliates. Any access to the properties of Newquay or any of its Affiliates shall be expectedsubject to its reasonable security measures and insurance requirements and shall not include the right to perform invasive testing (including a so-called “Phase 2”) without Newquay’s prior written consent. The terms and conditions of the Confidentiality Agreement shall apply to any information obtained by Pluto or any of its financial advisors, as a result of such disclosurebusiness consultants, and after consultation with legal counsel, accountants and other agents and representatives in connection with any investigation conducted pursuant to have the effect of causing the waiver of any attorney-client privilegeaccess contemplated by this Section 6.2(a).
(b) From and after the ClosingClosing until the date that is seven years following the Closing Date, except in connection with the activities contemplated by the Related Agreements or Transition Services Agreement as provided therein, neither Party shall, and shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇Pluto, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM SubsidiariesRover) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose to any other Person or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) to the extent required pursuant to the Requirements of Law, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup Pluto or ▇▇▇▇ ▇▇▇▇▇Newquay or any of their respective Affiliates, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further provided, further, that if either Party or its Affiliates is, in based on the opinion advice of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (bSection 6.2(b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information to the other Party.
(c) All Confidential Information provided or obtained in connection with the Transactions (including pursuant to subsection (a) aboveSection 6.2(a)) will be held in accordance with the Confidentiality Agreementletter agreements between Newquay Topco and Pluto, dated May 20December 1, 2005 2020 and January 12, 2021, respectively (together, the “Confidentiality Agreement”); provided that, in the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern.
(d) Following From and after the Closing, until the date that is twelve months following the Closing Date, upon Pluto’s request with respect to specified pre-Closing books and records reasonably necessary for the operation of the Rover Business by Pluto following the Closing the delivery of which is not otherwise provided for in the Transition Services Agreement, Newquay shall use reasonable best efforts to deliver the requested books and records of Rover to Pluto as promptly as reasonably practicable following any such request; provided that any books and records at any Rover Real Property as of the Closing (and not removed from such property by Newquay or its Affiliates) shall be deemed to have been delivered as of the Closing (it being agreed that Newquay may retain a copy thereof, at its own expense, subject to its confidentiality obligations in accordance with this Section 6.2). From and after the Closing until the date that is seven years following the Closing Date, subject to any Requirement of Law, each Party Newquay will allow the other Party Pluto and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice notice, to examine and make copies, at each PartyPluto’s own expense, of any relevant books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which that were retained by the other Party Newquay or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Rover Business, as the case may be, including in connection with (i) the preparation of a PartyPluto’s accounting records, or with any audits conducted by a PartyPluto, (ii) any third party suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Rover Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, Pluto shall reimburse the other Party Newquay promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may beNewquay, in connection with any such request and (B) neither Party Newquay shall not be required to permit the foregoing activities that would (xw) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party Newquay or of any of their respective its Affiliates unrelated to the Transactions or (yx) violate any obligations of either Party Newquay or their respective its Affiliates to any third party with respect to confidentiality or (zy) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege based upon the advice of counsel or (z) violate or cause a default under, or give a third party the right to terminate or accelerate the rights under, any Contract to which Newquay or any of its Affiliates is a Party or otherwise bound; provided, further, that Newquay may limit such access to the extent Newquay reasonably determines, in light of the opinion COVID-19 virus or any COVID-19 Measures, that such access would jeopardize the health and safety of counselany employee or representative of Newquay or its Affiliates.
(e) In addition to From and after the foregoing, Closing until the date that is seven years following the Closing and Date, subject to any Requirement of Law, each Party shall reasonably cooperate with Pluto will allow Newquay and assist the other Party in the former’s defense ofits representatives to have reasonable access, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to examine and make copies, at Newquay’s own expense, of any relevant books and records held by Pluto or its Affiliates for any purpose reasonably related to the extent that such action does not unduly interfere Rover Business, including in connection with (i) the business preparation of Newquay’s accounting records, or with any audits conducted by Newquay, (ii) any third party suit, claim, action, proceeding or investigation relating to the cooperating PartyRover Business or (iii) any regulatory filing or matter; provided that (A) the requesting Party Newquay shall reimburse the other Party Pluto promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party Pluto, in connection with any such request and (B) such other Party Pluto shall not be required to permit any of the foregoing activities that would (xw) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party Pluto or of any of their respective its Affiliates unrelated to the Transactions, Transactions or (yx) violate any obligations of either Party Pluto or their respective its Affiliates to any third party with respect to confidentiality or (zy) reasonably be expected, in the opinion of counsel, expected to have the effect of causing the waiver of any attorney-client privilegeprivilege based upon the advice of counsel or (z) violate or cause a default under, or give a third party the right to terminate or accelerate the rights under, any Contract to which Pluto or any of its Affiliates is a Party or otherwise bound; provided, further, that Pluto may limit such access to the extent Pluto reasonably determines, in light of the COVID-19 virus or any COVID-19 Measures, that such access would jeopardize the health and safety of any employee or representative of Pluto or its Affiliates.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e6.2(d) and Section 6.2(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
Appears in 1 contract
Sources: Share Purchase Agreement (PPL Corp)
Access and Confidentiality. (a) From Until the date hereof First Closing Date (and, with respect to the ClosingGE/Macy’s Assets, until the Second Closing Date and with respect to the May Assets, following the closing of the May Merger and until the Third Closing Date), upon reasonable prior notice and subject to any Requirement applicable Requirements of Law relating to the exchange of information, FDS and Sections 6.3(b) and (c), each Party FDS Bank shall, and shall cause its Affiliates Prime to, permit the other Party Purchaser and its authorized representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related consistent with this Agreement, to the Transactions, properties and Books and Records relating to their respective properties, premises, facilities, employees and representatives and books and recordsthe Business, including all computer tapes the Master File, the FDS Cardholder List, the GE/Macy’s Cardholder List and similarly stored datathe May Cardholder List, but only to the extent that such access does not unreasonably unduly interfere with the business of Citigroup or ▇▇▇▇ ▇▇▇▇▇ (the Sellers; provided that the Purchaser and their respective Affiliates), as the case may be, and each Party shall direct its employees, agents and representatives, and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully such representatives comply with the other Party confidentiality obligations contained herein and its representativesin the Confidentiality Agreement; provided and provided, further, that the foregoing shall not (1) require (i) either Party or its Affiliates the Sellers to (A) permit any inspection, or to disclose any information, that in their reasonable judgment would result in the disclosure of any trade secrets of third parties, parties or any trade secrets of either Party the Sellers or any of its respective their Affiliates unrelated to the Transactions Business or (B) violate any obligations of either Party or its Affiliates the Sellers to any third party with respect to confidentiality (provided that if the applicable Party Sellers shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) disclosure or (ii2) require any disclosure by a Party or any of its Affiliates the Sellers that would reasonably be expectedcould, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilege.
(b) From and after If this Agreement is terminated, each party, at its own expense, shall promptly deliver (without retaining any copies) to the Closingother party or (at their option) confirm in writing to the other party that it has completely destroyed all information furnished to such party or its representatives by the other party or any of their agents, except employees or representatives in connection with this Agreement, whether so obtained before or after the activities contemplated by the Related Agreements or as provided therein, neither Party shallexecution hereof, and all analyses, compilations, forecasts, studies or other documents prepared by such party or its representatives that contain or reflect any such information; provided, however, that the foregoing shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose apply to any other Person or otherwise use any Confidential Information of the other Party; provided summary analyses made by such party that a Party (or any of its Affiliates) may disclose Confidential Information such party is required to retain (i) to as part of the extent required pursuant to minutes of the Requirements proceedings of Lawits board of directors or any committee thereof, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigation, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements of Law, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by applicable Requirements of Law. If requested Notwithstanding the return or destruction of such information by the other Partyreceiving party and/or its agents, employees and representatives, the Party disclosing such information shall (x) exercise reasonable best effortsreceiving party and its agents, at employees and representatives will continue to be bound by its obligations hereunder and under the non-disclosing Party’s sole expense, to obtain reliable assurances that Confidentiality Agreements regarding the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, use and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure confidentiality of such as each Party uses information. Notwithstanding the foregoing provisions of this Section 6.3(b), the Purchaser shall not be required to protect its own confidential return information of a like nature. Neither Party, any of its Affiliates or their respective personnel (including each of its respective Affiliates’ accountants, legal advisers and other professional advisers) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information of the other Party, it shall promptly return such Confidential Information relating to the other PartyFDS Assets or the FDS Liabilities after the First Closing, the GE/Macy’s Assets or the GE/Macy’s Liabilities after the Second Closing, or the May Assets or the May Liabilities after the Third Closing.
(c) All Confidential Information In addition to the confidentiality arrangements contained herein, all information provided or obtained in connection with the Transactions transactions contemplated by this Agreement and by the Ancillary Agreements (including pursuant to subsection clause (a) above) will on or prior to the First Closing Date (or, with respect to information relating to the GE/Macy’s Assets and GE/Macy’s Liabilities, on or prior to the Second Closing Date and with respect to information relating to the May Assets and May Liabilities, on or prior to the Third Closing Date) shall be held by the Purchaser in accordance with the Confidentiality Agreement, dated May 20November 19, 2005 2004 between Citicorp Credit Services Inc. (USA) and FDS (the “FDS Confidentiality Agreement”) and the Confidentiality Agreement, dated April 26, 2005 between Citicorp Credit Services Inc. (USA) and FDS (the “May Confidentiality Agreement” and together with the FDS Confidentiality Agreement, the “Confidentiality Agreements”); provided that, in . In the event of a conflict or inconsistency between the terms of this Agreement and the Confidentiality AgreementAgreements, the terms of this Agreement will shall govern.
(d) Following the Closing, subject to any Requirement of Law, each Party will allow the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates The parties agree that monetary damages would not be a sufficient remedy for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with (i) the preparation breach of a Party’s accounting records, or with any audits conducted by a Party, (ii) any suit, claim, action, proceeding or investigation relating to the CAM Business or the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required to permit the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to the foregoing, following the Closing and subject to any Requirement of Law, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigroup’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), 6.3 and the provisions of Article VIII shall govern the preservationConfidentiality Agreements, retention and sharing of Tax Returns that, in addition to all other remedies, each Party will be entitled to seek specific performance and Tax work papers.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in seek injunctive or other equitable relief as a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or remedy for any longer period as may be (A) required pursuant to the Requirements breach of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e6.3 and the provisions of the Confidentiality Agreements.
(e) From the date hereof through the First Closing Date (and with respect to the GE/Macy’s Assets, through the Second Closing Date, and with respect to the May Assets, from the closing of the May Merger through the Third Closing Date), the provisions Sellers shall provide to the Purchaser on a monthly basis the reports that would be required to be provided to the Purchaser pursuant to Section 7.1 of Article VIII the Program Agreement following the Effective Date thereunder (or in the case of the May Assets, such similar existing reports as are reasonably available to FDS).
(f) From the date hereof through the Second Closing Date, the Sellers shall govern provide the preservationPurchaser reasonable prior written notice (including a description of such change) of any material changes in the credit and underwriting, retention risk management, reaging, posting, collection or operating policies and sharing procedures with respect to the Business made pursuant to the GE/Macy’s Program Agreement. From the date of Tax Returns and Tax work papersthe closing of the May Merger through the Third Closing Date, the Sellers shall provide the Purchaser reasonable prior written notice describing any such material changes to be made in connection with the May Business.
Appears in 1 contract
Sources: Purchase, Sale and Servicing Transfer Agreement (Macy's, Inc.)
Access and Confidentiality. From the date of this Agreement until the earlier of (i) the Closing Date, and (ii) the date, if any, on which this Agreement is terminated pursuant to Section 7.1:
(a) From the date hereof to the Closing, subject to any Requirement of Law and Sections 6.3(b) and (c), each Each Seller Party shall, and shall cause its Affiliates all the Target Group Companies to, permit the other Party and its representatives to have reasonable access, during regular business hours and upon reasonable advance notice for purposes reasonably related to prior written notice, (i) give the TransactionsBuyer Parties, to their respective properties, premises, facilitiesofficers, employees and representatives and books and authorized Representatives, reasonable access to each Target Group Company’s books, records, including all computer tapes officers, employees, agents, offices and similarly stored dataother assets, but only Contracts, facilities and properties, (ii) furnish to the extent that Buyer Parties, their counsel, financial advisors, auditors and other authorized Representatives such access does not unreasonably interfere with financial and operating data and other information relating to the business of Citigroup Target Group Companies, the Target Business or ▇▇▇▇ ▇▇▇▇▇ the Contributed Assets as such Persons may reasonably request and (and their respective Affiliates), as iii) instruct the case may be, and each Party shall direct its employees, agents consultants, agents, counsel, financial advisors, auditors and representativesother authorized Representatives of the Target Group Companies to reasonably cooperate with Buyer Parties in their due diligence investigation of the Target Group Companies and the Target Business, including without limitation the status of the Restructuring. Notwithstanding anything to the contrary set forth herein, the Seller Parties and shall cause its Affiliates and their employees, agents and representatives, to cooperate fully with the other Party and its representatives; provided that the foregoing Target Group Companies shall not require (i) either Party or its Affiliates be required to (A) permit any inspectionprovide access to, or to disclose any information, that to the extent such access or disclosure would result in jeopardize the disclosure attorney-client privilege of any trade secrets of third partiesthe Seller Parties, the Target Group Companies or their respective Subsidiaries, or contravene any trade secrets of either Party or any of its respective Affiliates unrelated to the Transactions or applicable Law (B) violate any obligations of either Party or its Affiliates to any third party including with respect to confidentiality (provided that the applicable Party shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure) or (ii) any disclosure by a Party or any of its Affiliates that would reasonably be expectedcompetitively sensitive information, as a result of such disclosure, and after consultation with counsel, to have the effect of causing the waiver of any attorney-client privilegeif any).
(b) From and after The Seller Parties shall cause the ClosingTarget Group Companies to give prompt written notice to the Buyer, except (i) of any notice or other communication received by the Target Group Companies or any Seller Party from any Governmental Authority in connection with this Agreement or the Contemplated Transactions, or from any Person alleging that the consent of such Person (or another Person) is or may be required in connection with the activities contemplated by the Related Agreements or as provided thereinContemplated Transactions, neither Party shall, and shall cause its respective Affiliates (including, in the case of ▇▇▇▇ ▇▇▇▇▇, the CAM Subsidiaries and, in the case of Citigroup, the PC/CM Subsidiaries) and its Affiliates’ personnel (including each of their accountants, legal advisers and other professional advisers) not to, disclose to any other Person or otherwise use any Confidential Information of the other Party; provided that a Party (or any of its Affiliates) may disclose Confidential Information (i) to the extent required pursuant to the Requirements of Law, in any report, statement, testimony or other submission to any Governmental Authority or (ii) in order to comply with any Requirement of Law, or in response to any summons, subpoena or other legal process or formal or informal investigative demand issued to Citigroup or ▇▇▇▇ ▇▇▇▇▇, as the case may be, in the course of any litigationAction commenced or, investigation or administrative proceeding; provided further that if either Party or its Affiliates is, in the opinion of counsel to such Party, required by Requirements of Law to disclose any Confidential Information, such Party shall (A) to the extent such action would not violate or conflict with Requirements knowledge of Lawthe Seller Parties, promptly notify the other Party of such Requirement of Law so that the non-disclosing Party may, at its sole expense, seek an appropriate protective order and/or waive in writing the disclosing Party’s compliance with the provisions of this Agreement and (B) if, in the absence of a protective order or the receipt of a waiver hereunder, such Party or any of its Affiliates is nonetheless, in the opinion of counsel to such Party, compelled to disclose such Confidential Information, such Party, after notice to the non-disclosing Party (unless such notice would violate or conflict with Requirements of Law), may disclose such Confidential Information to the extent so required, in the opinion of counsel, by Requirements of Law. If requested by the other Party, the Party disclosing such information shall (x) exercise reasonable best efforts, at the non-disclosing Party’s sole expense, to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by the non-disclosing Party to obtain reliable assurances that the Confidential Information so disclosed will be accorded confidential treatment. Each Party agrees, and shall cause its Affiliates, to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as each Party uses to protect its own confidential information of a like nature. Neither Partythreatened against, any of its Affiliates Target Group Company, any Seller Party or their respective personnel Subsidiaries, in each case arising from or relating to the Contemplated Transactions, or (including each of its respective Affiliates’ accountants, legal advisers and other professional advisersiii) shall be liable for the disclosure of Confidential Information as expressly permitted by this subsection (b). To the extent that a Party (or any of its Affiliates) discovers that it possesses Confidential Information upon becoming aware of the other Partyoccurrence or impending occurrence that individually or in the aggregate, it shall promptly return such Confidential Information to the other Partywould have a Material Adverse Effect.
(c) All Confidential Information provided If, after the date hereof, any Party becomes aware of any facts, events or obtained in connection with the Transactions (including pursuant to subsection (a) above) will be held in accordance with the Confidentiality Agreementcircumstances that have, dated May 20, 2005 (the “Confidentiality Agreement”); provided that, individually or in the event aggregate, resulted in any condition set forth in ARTICLE III to become incapable of a conflict or inconsistency between being satisfied prior to the terms of this Agreement and the Confidentiality Agreement, the terms of this Agreement will govern.
Long Stop Date (d) Following the Closing, subject after giving effect to any Requirement of Lawapplicable cure period), each such Party will allow shall promptly give the other Party and its representatives to have reasonable accessParties a written notice, during regular business hours and upon reasonable advance notice to examine and make copies, at each Party’s own expense, of any books and records and personnel records relating to the CAM Business or the PC/CM Business, as the case may be, which were retained by the other Party or its Affiliates for any purpose reasonably related to the CAM Business or the PC/CM Business, as the case may be, including in connection with setting forth therein (i) the preparation of a Party’s accounting recordsrelevant facts, events or with any audits conducted by a Partycircumstances, (ii) any suitthe condition(s) which such Party believes has or have, claimas a result, action, proceeding or investigation relating become incapable of being satisfied prior to the CAM Business or Long Stop Date. Upon such notice, the PC/CM Business or (iii) any regulatory filing or matter; provided that (A) Citigroup or ▇▇▇▇ ▇▇▇▇▇, as Parties shall discuss in good faith whether the case may be, shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by ▇▇▇▇ ▇▇▇▇▇ or Citigroup, as the case may be, in connection with any such request and (B) neither Party shall be required to permit the foregoing activities that would (x) result in the disclosure relevant conditions have indeed become incapable of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated being satisfied prior to the Transactions or (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably Long Stop Date and, if so, whether such condition will be expected to have the effect of causing the waiver of any attorney-client privilege in the opinion of counsel.
(e) In addition to waived. Notwithstanding the foregoing, following the Closing and subject nothing in this Section 5.1(c) shall be deemed to obligate any Requirement of LawParty to waive any condition set forth in ARTICLE III, each Party shall reasonably cooperate with and assist the other Party in the former’s defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that such Party requesting cooperation would be required to indemnify the other Party pursuant to Article VIII or Article X from and against any Losses suffered by such other Party in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of the other Party has knowledge as a result of such employee’s prior employment with the Party requesting cooperation. Such obligation to cooperate shall include causing such employees to be available to the requesting Party during regular business hours and upon reasonable advance notice, but only to the extent that such action does not unduly interfere with the business of the cooperating Party; provided that (A) the requesting Party shall reimburse the other Party promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by such other Party in connection with any such request and (B) such other Party shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of either Party or of any of their respective Affiliates unrelated to the Transactions, (y) violate any obligations of either Party or their respective Affiliates to any third party with respect to confidentiality or (z) reasonably be expected, in the opinion of counsel, to have the effect of causing the waiver of any attorney-client privilege.
(f) ▇▇▇▇ ▇▇▇▇▇ shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the CAM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to granted or withheld at the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of Citigroup reasonable access (including the right to make photocopies at Citigrouprelevant Party’s expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work paperssole discretion.
(g) Citigroup shall (i) preserve and keep all books and records relating to the accounting, business and financial affairs related to the PC/CM Business in a manner reasonably consistent with past practice, for a period of not less than seven years following the Closing Date or for any longer period as may be (A) required pursuant to the Requirements of Law or any Governmental Authority or (B) reasonably necessary with respect to the prosecution or defense of any audit or other legal action and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of ▇▇▇▇ ▇▇▇▇▇ reasonable access (including the right to make photocopies at ▇▇▇▇ ▇▇▇▇▇’▇ expense), during normal business hours, to such books and records. Notwithstanding the foregoing provisions of this Section 6.3(e), the provisions of Article VIII shall govern the preservation, retention and sharing of Tax Returns and Tax work papers.
Appears in 1 contract