Access of Buyer. (a) During the Interim Period, Seller will provide, and will cause the Acquired Companies to provide, Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, books and records of the Acquired Companies and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired Companies, but only to the extent that such access does not unreasonably interfere with the business of Seller and its Affiliates or the Businesses of the Acquired Companies, that such access is reasonably related to the requesting Party’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates and (ii) impose reasonable restrictions and requirements for safety purposes. Buyer shall be entitled, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that Buyer shall not be entitled to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company, or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive models. (b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein. (c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify and hold harmless Seller, its Affiliates and their respective Representatives for any and all liabilities or Losses incurred by Seller, its Affiliates or their respective Representatives, or by any of Buyer’s Representatives, for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Property. (d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Vistra Energy Corp), Purchase and Sale Agreement (Vistra Energy Corp), Purchase and Sale Agreement (Energy Future Intermediate Holding CO LLC)
Access of Buyer. (a) During the Interim Period, Seller will provide, and will cause the Acquired Companies to provide, provide Buyer and its prospective financing sources and its and their Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and access during normal business hours, hours (and other hours as reasonably appropriate to fulfill the intent of this provision) to the properties, books and records of the Acquired Companies Facilities and the appropriate officers and management employees of Seller and its Affiliates who have significant responsibility for one or more Acquired (including the Companies, but only ) in such a manner so as not to the extent that such access does not unreasonably interfere with the business or operations of Seller and or its Affiliates or (including the Businesses of the Acquired Companies), that such access is reasonably related to the requesting Party’s obligations include participation by Buyer in material management meetings and rights hereundertechnical meetings, including those relating to major capital projects and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirementsunit overhauls; provided, however, that Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates and (ii) impose reasonable restrictions and requirements for safety or operational purposes. Buyer shall be entitled, at its sole cost and expense, to have visit the Real Property surveyed and to conduct non-invasive physical inspections; providedreceive such information as may reasonably be required so that it may prepare and/or review financial statements after the date hereof. Notwithstanding the foregoing, however, that Buyer Seller shall not be entitled required to collect provide any air, soil, surface water information or ground water samples nor to perform allow any invasive or destructive sampling on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure inspection which it reasonably believes it may not provide to Buyer pursuant or allow by reason of applicable Law, which constitutes or allows access to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any information protected by attorney/client, work productclient privilege, or similar privilege, (y) not being of confidential information concerning the activities of which Seller or its Affiliates (other than is required to keep confidential or prevent access to by reason of contract, agreement or understanding with third parties if Seller has used commercially reasonable efforts to obtain the Acquired Companies) that is unrelated consent of such third party to such inspection or disclosure. Following the Closing, Seller shall be entitled to retain copies of all books and records relating to the Acquired Companies, ownership and/or operation of the Business of any Acquired Company, Companies or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelstheir respective businesses.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify indemnify, defend and hold harmless Seller, its the Companies, the Non-Company Affiliates and their respective Representatives for from and against any and all liabilities or Losses incurred by Seller, its Affiliates the Companies, the Non-Company Affiliates, their Representatives or their respective Representatives, or by any of Buyer’s Representatives, for any other Person relating to physical injuries or property damage arising out of the access and other rights under this Section 6.26.01, caused including any Claims by any of Buyer’s Representatives for any injuries or Losses while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during Real Property unless caused by the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business gross negligence or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none willful misconduct of Seller, its Affiliates the Companies or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented outNon-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Company Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (US Power Generating CO), Purchase and Sale Agreement (Reliant Energy Inc)
Access of Buyer. (a) During the Interim Period, Seller will provide, and will cause the Acquired Project Companies to provide, Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, books and records of the Acquired Companies Projects and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired Project Companies, but only to the extent that such access does not unreasonably interfere with the business of Seller and its Affiliates or the Businesses of the Acquired Project Companies, and that such access is reasonably related to the requesting Party’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirementsLaws; provided, however, that Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates and (ii) impose reasonable restrictions and requirements for safety purposes. Buyer shall be entitled, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that Buyer shall not be entitled to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar like privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Project Company, or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, energy or natural gas, fuel oil or other fuel gas price curves or projections, or other economic predictive models.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned withheld or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify and hold harmless Seller, its Affiliates and their respective Representatives for any and all liabilities liabilities, losses, costs or Losses expenses incurred by Seller, its Affiliates or their respective Representatives, or by any of Buyer’s Representatives, Representatives for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Baltimore Gas & Electric Co)
Access of Buyer. (a) During the Interim Period, Seller will provide, and will cause the Acquired Companies to provide, provide Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and access during normal business hours, hours to the properties, books and records of the Acquired Companies Facilities and the appropriate officers and management employees of Seller and its Affiliates who have significant responsibility for one or more Acquired (including the Companies, but only ) in such a manner so as not to the extent that such access does not unreasonably interfere with the business or operations of Seller and or its Affiliates or (including the Businesses of the Acquired Companies, that such access is reasonably related to the requesting Party’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements); provided, however, that Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates and (ii) impose reasonable restrictions and requirements for safety or operational purposes. Buyer shall be entitled, at its sole cost and expense, to have visit the Property surveyed and to conduct non-invasive physical inspections; providedProperty. Notwithstanding the foregoing, however, that Buyer Seller shall not be entitled required to collect provide any air, soil, surface water information or ground water samples nor to perform allow any invasive or destructive sampling on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure inspection which it reasonably believes it may not provide to Buyer pursuant or allow by reason of applicable Law, which constitutes or allows access to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any information protected by attorney/client, work productclient privilege, or similar privilege, (y) not being of confidential information concerning the activities of which Seller or its Affiliates (other than is required to keep confidential or prevent access to by reason of contract, agreement or understanding with third parties if Seller has used reasonable best efforts to obtain the Acquired Companies) that is unrelated consent of such third party to such inspection or disclosure. Following the Closing, Seller shall be entitled to retain copies of all books and records relating to the Acquired Companies, ownership and/or operation of the Business of any Acquired Company, Companies or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelstheir respective businesses.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify and hold harmless Seller, its Affiliates and their respective Representatives for any and all liabilities or Losses incurred by Seller, its Affiliates or their respective Representatives, or by any of Buyer’s Representatives, for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its the Companies, the Non-Company Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller Seller, the Companies, the Non-Company Affiliates, their Representatives or any of its Affiliates, to the extent other Person arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to the access rights under this Section 6.2(d) 6.01, including any Claims by any of Buyer's Representatives for any injuries or in connection with such financing activities Losses while present on the Property unless caused by the gross negligence or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by willful misconduct of Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 1 contract
Access of Buyer. (a) During the Interim Period, Seller Sellers will provide, and will cause the Acquired Companies to provide, provide Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, officers of the Companies and to the Midstream Assets (including their books and records of the Acquired Companies and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired Companiesrecords), but only to the extent that such access (i) does not unreasonably interfere with the business of Seller and its Affiliates the Companies or the Businesses safe commercial operations of the Acquired Companies, that such access Midstream Assets and (ii) is reasonably related to the requesting PartyBuyer’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that Seller (A) Sellers shall have the right to (i) have a Representative present for any permitted communication with employees or such officers of Seller or its Affiliates and (iiB) impose reasonable restrictions and requirements for safety purposes. Buyer shall be entitledand shall cause its Representatives to observe and comply with all health, safety and security requirements at its sole cost and expenseeach of the Midstream Assets. For purposes of clarification, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that Buyer shall not be entitled to collect any air, soil, surface water or ground water groundwater samples nor to perform any invasive or destructive sampling on, under, at or from the Midstream Assets and the conducting of such physical inspections shall not be a condition to Closing. Buyer shall hold in confidence all such information on the Propertyterms and subject to the conditions contained in the Confidentiality Agreement. Promptly upon completion of any such entryNotwithstanding anything to the contrary in this Section 6.2, Buyer shall repair have no right of access to, and neither Sellers nor any damage caused by such entry. Any of their Affiliates shall have any obligation to provide any information the disclosure of which (1) would reasonably be expected to Buyer pursuant jeopardize any privilege available to the foregoing shall be subject to such disclosure (w) not violating any applicable LawsSellers or their Affiliates, (x2) not resulting in the waiver of any attorney/client, work product, would cause Sellers or similar privilege, (y) not being of confidential information concerning the activities of Seller or its their Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company, or the Projectsbreach a confidentiality obligation, or (z3) not being would result in a violation of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelsLaw.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to defend, indemnify and hold harmless SellerSellers, its the Companies and each of their Affiliates and their respective Representatives for any and all liabilities liabilities, losses, costs or Losses expenses incurred by Sellersuch Persons arising out of the access rights under this Section 6.2, its Affiliates or their respective Representatives, or including any Claims by any of Buyer’s Representatives, Representatives for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim PeriodProperties, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller liabilities, losses, costs or expenses resulting from the Companies). This Section 6.2(d) shall survive the termination gross negligence or willful misconduct of this AgreementSellers or a Company.
Appears in 1 contract
Access of Buyer. (a) During Until the Interim PeriodClosing, Seller will provideshall cause NEC Yamanashi and NEC Miyagi, and will from and after the Bunkatsu Day, Seller shall cause the Acquired Companies to provideCompany to, authorize and permit Buyer and its Representatives with representatives (which term shall be deemed to include its independent accountants, environmental consultants, occupational health and safety consultants and its counsel) to have reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and access during normal business hours, to the properties, books upon reasonable notice and records of the Acquired Companies and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired Companies, but only to the extent that in such access does manner as will not unreasonably interfere with the business conduct of Seller and its Affiliates or the Businesses of the Acquired Companies, that such access is reasonably related to the requesting Party’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates and (ii) impose reasonable restrictions and requirements for safety purposes. Buyer shall be entitled, at its sole cost and expensetheir respective businesses, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that Buyer shall not be entitled to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on the Property. Promptly upon completion all of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates their respective properties (other than the Acquired Companies) that is unrelated NEC Yamanashi's facilities in Otsuki, Japan), books and records and all other information with respect to the Acquired Companies, the Transferred Business of any Acquired Company, or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining as Buyer may from time to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelstime reasonably request.
(b) During In the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify and hold harmless Seller, its Affiliates and their respective Representatives for any and all liabilities or Losses incurred by Seller, its Affiliates or their respective Representatives, or by any of Buyer’s Representatives, for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement, Buyer shall promptly deliver (without retaining any copies thereof) to Seller, or (at Buyer's option) certify to Seller that it has destroyed, all documents, workpapers and other material obtained by Buyer or on its behalf from Seller, Company, NEC Yamanashi or NEC Miyagi, or from any of their respective advisors, agents, employees or representatives as a result hereof or in connection with the matters contemplated by this Agreement, and all documents, workpapers and other materials prepared by Buyer or its advisors, agents, employees or representatives in connection with the matters contemplated by this Agreement, in each case whether so obtained or prepared before or after the execution hereof. Buyer and Parent shall at all times prior to the Closing Date, and in the event of termination of this Agreement, cause any information so obtained or prepared to be kept confidential and will not use, or permit the use of, such documents, workpapers and other materials in its business or in any other manner or for any other purpose except as contemplated hereby. All information provided to, obtained by or prepared by Buyer or Parent and their respective advisors, agents, employees or representatives shall be held by Buyer and Parent in accordance with and subject to the terms of the Confidentiality Agreement dated July 21, 2000, between Parent and NEC Corporation (the "Confidentiality Agreement").
Appears in 1 contract
Access of Buyer. (a) During the Interim Period, Seller will provide, and will cause the Acquired Companies Newington Energy to provide, Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, books and records of the Acquired Companies Project and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired CompaniesNewington Energy and to Newington Energy’s properties, books, Contracts and records and members of management, and Seller shall furnish promptly to Buyer such information concerning Newington Energy’s Business and properties as Buyer may reasonably request, but only to the extent that such access does and such requests do not unreasonably interfere with the business of Seller and its Affiliates or the Businesses Business of the Acquired CompaniesNewington Energy, and that such access is reasonably related to the requesting Party’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirementsLaws; provided, however, provided that Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates and (ii) impose reasonable restrictions and requirements for safety purposes. Buyer shall be entitled, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, provided that Buyer shall not be entitled to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by Buyer or Buyer’s Affiliate during such entry. Any access by or disclosure to Buyer pursuant to the foregoing shall be subject to such access or disclosure (wA) not violating any applicable LawsLaws or Contracts (provided that with respect to any Contract that would be violated by such access or disclosure, Seller shall exercise commercially reasonable efforts to obtain a waiver or consent from the Contract counterparty in order to permit such access or disclosure), (xB) not resulting in the waiver of any attorney/client, client or attorney work product, or similar product privilege, (yC) not being of confidential information concerning the activities of Seller or its the Non-Newington Affiliates (other than the Acquired Companies) that is unrelated to the Acquired CompaniesNewington Energy, the Business of any Acquired CompanyBusiness, or the ProjectsProject, or (zD) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil energy or other fuel price curves or projections, or other economic predictive models, or (E) with respect to a hedge provider or ▇▇▇▇▇▇, not being of Contracts that are no longer in force and effect.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired CompanyNewington Energy, or any Representatives representatives of any Governmental Authority, regarding any the Project or Acquired Company Newington Energy without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned withheld or delayed); provided that Seller agrees to use its commercially reasonable efforts, during the period of 15 Business Days commencing on the first Business Day after the date hereof, to arrange for a meeting between Buyer and Hawkeye. If Seller does not or is not able to arrange for such a meeting, then Buyer shall be permitted to contact Hawkeye directly. At any such meeting consented to by Seller, a Representative Representatives of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify and hold harmless Seller, its Affiliates and their respective Representatives for from and against any and all liabilities liabilities, losses, costs or Losses expenses incurred by Seller, its Affiliates or their respective Representatives, or by any of Buyer’s Representatives, for any injuries or property damage Representatives arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement.this
Appears in 1 contract
Sources: Purchase and Sale Agreement (Consolidated Edison Inc)
Access of Buyer. (a) During the Interim Period, Seller will provide, and will cause the Acquired Project Companies to provide, Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) 5 Business Days’ prior written notice) and during normal business hours, to the propertiesProjects, books and records of the Acquired Companies and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired Project Companies and to the Companies’ properties, books, Contracts and records and members of management, and Seller shall furnish promptly to Buyer such information concerning the Companies’ business and properties as Buyer may reasonably request, but only to the extent that such access does and such requests do not unreasonably interfere with the business of Seller and its Affiliates or the Businesses of the Acquired Project Companies, and that such access is reasonably related to the requesting Party’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirementsLaws; provided, however, provided that Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates and (ii) impose reasonable restrictions and requirements for safety purposes. Buyer shall be entitled, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, provided that Buyer shall not be entitled to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by Buyer or Buyer’s Affiliate during such entry. Any access by or disclosure to Buyer pursuant to the foregoing shall be subject to such access or disclosure (wA) not violating any applicable LawsLaws or Contracts (provided that with respect to any Contract that would be violated by such access or disclosure, Seller shall exercise commercially reasonable efforts to obtain a waiver or consent from the Contract counterparty in order to permit such access or disclosure), (xB) not resulting in the waiver of any attorney/client, client or attorney work product, or similar product privilege, (yC) not being of confidential information concerning the activities of Seller or its the Non-Company Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Project Company, or the Projects, or (zD) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil energy or other fuel price curves or projections, or other economic predictive models, or (E) with respect to a hedge provider or ▇▇▇▇▇▇, not being of Contracts that are no longer in force and effect.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned withheld or delayed); provided that Seller agrees to use its commercially reasonable efforts, during the period of 15 Business Days commencing on the first Business Day after the date hereof, to arrange for a meeting between Buyer and each of Jersey Central Power and Light Company, Osaka Gas and the lenders under Lakewood Cogeneration Limited Partnership’s Credit Agreement, as applicable. If Seller does not or is unable to arrange for such meetings, then Buyer shall be permitted to contact directly the Jersey Central Power and Light Company, Osaka Gas and the lenders under Lakewood Cogeneration Limited Partnership’s Credit Agreement, as applicable. At any such meeting consented to by Seller, a Representative Representatives of Seller shall be entitled to participate therein.
(c) Buyer assumes agrees to indemnify and hold harmless Seller, its Affiliates and their Representatives from and against any and all risks of Loss associated with liabilities, losses, costs or expenses incurred by Seller, its Affiliates or their Representatives arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify and hold harmless Seller, its Affiliates and their respective Representatives for including any and all liabilities or Losses incurred by Seller, its Affiliates or their respective Representatives, or Claims by any of Buyer’s Representatives, Representatives for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the any Property.
(d) Buyer shall use its commercially reasonable efforts to arrange and consummate all of the Commitments, including using its reasonable best efforts to (i) negotiate definitive agreements with respect thereto on terms and conditions contained therein and (ii) to satisfy all conditions in such definitive agreements that are within its control. In the event all or any portion of the equity or debt financing under the Commitments becomes unavailable on the terms and conditions contemplated in the Commitments, Buyer shall use its commercially reasonable efforts to arrange to obtain any such financing from alternative sources as promptly as practicable following the occurrence of such event (the “Alternative Financing”). Buyer shall give Seller prompt notice of any material breach by any party of any Commitments or any termination of any Commitments. Buyer shall keep Seller reasonably informed of the status of their efforts to arrange the Commitments and shall notify Seller of any material modifications to the Commitments.
(e) Seller shall provide, and, prior to the Closing Date, shall cause the Companies to provide, reasonable cooperation in connection with the arrangement of the equity and debt financing contemplated by the Commitments (or Alternative Financing) as may be reasonably requested by Buyer, including (i) participation in a reasonable number (in the aggregate) of meetings, presentations, management presentation sessions, “road shows,” sessions with ratings agencies, and due diligence sessions, (ii) furnishing Buyer and its financing sources with audited financial statements with respect to Lakewood Cogeneration Limited Partnership and assisting Buyer with the preparation (at Buyer’s expense) of combined audited financial statements for the Companies, in each case, for each of the three most recent fiscal years (including, as one of such fiscal years, the fiscal year ended December 31, 2007), furnishing such other financial information regarding the Companies as may be reasonably requested by Buyer, including, if available, unaudited financial statements as of and for the fiscal years ending December 31, 2003 and 2004 and the then most recent quarterly unaudited financial statements (and the corresponding quarterly period for the prior year) and, if not available, information relating to the financial reporting of the Companies, and furnishing usual and customary management representation letters that may be requested by the auditors as a condition of the preparation of the audited financial statements referenced above in this Section 6.2(e), (iii) reasonably assisting Buyer with Buyer’s and its Affiliates financing activities during satisfaction of the Interim Periodconditions, if any, set forth in the Commitments which reasonably require the cooperation of Seller shallor any Company, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, (iv) providing commercially reasonable cooperation with Buyer and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost lenders and expense, all cooperation reasonably requested by Buyer potential physical and that is customary financial hedge providers and tollers in connection with hedging the syndication of such debt financing and related activities; provided, however, provided that (iA) nothing in this Section 6.2(d) Seller’s provision of such cooperation shall require any cooperation to the extent that it would not unreasonably interfere with the business or operations of the Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Businesses of any of the Project Companies or the business of any of the Parent Companies, (B) Seller shall not be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other cost, expense or liability whatsoever in connection with such cooperation or the equity or debt financing activities. under the Commitments and no Company shall be required, prior to the Closing, to pay any commitment or other similar fee or incur any cost, expense or liability whatsoever in connection with such cooperation or the equity or debt financing under the Commitment, (C) the public accounting firm that will conduct the audit work in connection with the audited financial statements referenced above in this Section 6.2(e) shall be selected by Seller in its sole discretion (unless, in Seller’s sole discretion, Seller expressly permits Buyer to make the selection), (D) Buyer shall promptlypromptly pay all fees and expenses of the public accounting firm that conducts the audit work in connection with the audited financial statement referenced above in this Section 6.2(e) (and, upon requestif Seller should happen to pay such fees and expenses, to promptly reimburse Seller therefore), (E) Buyer shall pay the Seller for the reasonably allocated and documented cost of each officer or employee of Seller, any Company or any Non-Company Affiliate of Seller who performs any service arising from or in connection with this Section 6.2(e), such cost to be a per hour cost and based on the fully loaded cost (salary, bonuses, benefits, administrative and overhead costs) of each such officer or employee and the time spent on performing services arising from or in connection with this Section 6.2(e), and Buyer shall also reimburse Seller for all documented the reasonable out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller the Seller, such Company, or its Affiliates, including the Acquired Companies, Non-Company Affiliate in connection with any officer or employee of Seller, the cooperation provided Company or any Non-Company Affiliate performing any service arising from or in connection with this Section 6.2(e), (F) Seller’s obligations pursuant to this Section 6.2(d6.2(e) shall not extend beyond the date that is nine months following the completion of the audited financial statements referred to in clause (ii) above, and (G) Buyer shall keep Seller reasonably apprised as to the timing and schedule with respect to the arrangement of the equity and debt financing Commitments (or Alternative Financings). All non-public information regarding Seller Nothing in this Agreement and its Affiliates provided no performance or failure to Buyer, its Affiliates perform any services arising from or its Representatives pursuant to in connection with this Section 6.2(d6.2(e) shall be kept confidential construed to make the receipt by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its AffiliatesAffiliates of any financing whatsoever (whether debt financing, to equity financing, Alternate Financing or otherwise, including any matter referenced in any of the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(dCommitments) or entering into any contracts or other arrangements with physical or financial hedge providers or tollers a condition of Buyer’s obligation to consummate the Closing. The only conditions to Buyer’s obligation to consummate the Closing are set forth in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination Article VII of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Consolidated Edison Inc)
Access of Buyer. (a) During the Interim Period, Seller will provideshall, and will shall cause the Acquired Companies Company Group, to providethe fullest extent permissible under applicable Law, to make available to and provide Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the propertiesAcquired Company Group’s assets and properties (including the Pipelines), books Books and records of the Acquired Companies Records, Service Providers and the appropriate officers and employees of Seller and its Affiliates Representatives who have significant responsibility for one the Acquired Company Group’s assets and such other information related to the Acquired Company Group, the Acquired Company Interests or more the assets and properties of the Acquired CompaniesCompany Group as Buyer may reasonably request, but only to the extent that such access (i) does not unreasonably interfere with the Acquired Company Group’s business of Seller and its Affiliates or the Businesses safe commercial operations of the Acquired CompaniesCompany Group, that such access and (ii) is reasonably related to the requesting PartyBuyer’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that (A) Seller shall have the right to (i) have a Representative of \\4141-5696-8778 v37 Seller present for any permitted communication with employees or officers the Acquired Company Group’s Representatives; (B) Buyer shall, and shall cause its Representatives to, observe and comply with all material health, safety, and security requirements of Seller or its Affiliates the Acquired Company Group; and (iiC) impose reasonable restrictions and requirements for safety purposes. neither Buyer shall be entitled, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that Buyer shall not be entitled to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company, or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining or Representatives, shall conduct any environmental site assessment, compliance evaluation or investigation with respect to energy project evaluationany of the Acquired Company Group Members without the prior written consent of Seller (which may be provided or withheld in Seller’s sole discretion) and without ongoing consultation with Seller with respect to any such activity (it being understood and agreed that in no event shall any subsurface investigation or testing of any environmental media be conducted). Buyer shall hold in confidence all such information on the terms and subject to the conditions contained in the Confidentiality Agreement (and if such Confidentiality Agreement was executed by an Affiliate of Buyer, energythen Buyer hereby agrees to be bound by and to comply with the terms and conditions of such Confidentiality Agreement as if Buyer was party thereto). Notwithstanding the foregoing, natural gasBuyer shall not have any right of access to, fuel oil and none of Seller, any Acquired Company Group Member or any of their respective Affiliates shall have any obligation to provide any information, the disclosure of which (1) would reasonably be expected to jeopardize any attorney-client privilege available to Seller, any Acquired Company Group Member, or any of their respective Affiliates, (2) would cause Seller, any Acquired Company Group Member or their Affiliates to breach any Contract to which they are a party, or (3) would result in a violation of Law; provided that, in the event that the restrictions in foregoing clauses (1), (2) or (3) apply, Seller shall notify Buyer that it is so withholding information and shall provide Buyer with a reasonably detailed description of the information not provided, and Seller shall cooperate in good faith to design and implement alternative disclosure arrangements to enable Buyer to evaluate such information without violating such Contract or Law or jeopardizing such privilege. No investigation by Buyer or other fuel price curves information received by Buyer shall operate as a waiver or projectionsotherwise affect any representation, warranty, or other economic predictive modelsagreement given or made by Seller in this Agreement.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer ▇▇▇▇▇ agrees to indemnify and hold harmless Seller, its Affiliates the Acquired Company Group, their Affiliates, and any of their respective Representatives for any and all liabilities liabilities, Losses, costs, or Losses expenses incurred by Seller, its the Acquired Company Group, any of their Affiliates or their respective RepresentativesRepresentatives arising out of the access rights under this Section 7.02, or including any Action by any of Buyer’s Representatives, or its Affiliates’ Representatives for any injuries or material property damage arising out while accessing any assets or properties of the access and other rights under this Section 6.2Acquired Company Group, caused by any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation except to the extent that it would unreasonably interfere with caused by or resulting from the business gross negligence or operations willful misconduct of Seller or its Affiliates, including the any Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this AgreementCompany Group Member.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Nextera Energy Partners, Lp)
Access of Buyer. (a) During From the Execution Date until the Closing Date (the “Interim Period”), Seller will provide, Contributor and will cause the Acquired Companies to provide, shall provide Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the propertiesall assets, books and records records, contracts, documents, officers, employees (if any), agents, legal advisors, and accountants of the Acquired Companies, and Contributor and the Companies shall furnish reasonably promptly to Buyer and its Representatives such information concerning the Companies and the appropriate officers their assets, business, books and employees records, contracts, and personnel as may be reasonably requested, from time to time, by or on behalf of Seller Buyer. Buyer and its Affiliates who have significant responsibility for one or more Acquired Companies, but only Representatives shall conduct any such activities in such a manner as not to the extent that such access does not interfere unreasonably interfere with the business of Seller and its Affiliates or the Businesses of the Acquired Companies, that such access is reasonably related to the requesting Party’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that Seller . Contributor shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller Contributor (if any) or its Affiliates Affiliates, and (ii) impose reasonable restrictions and requirements for safety purposes. Buyer shall and shall cause its Representatives to observe and comply with all applicable health, safety, and security requirements of Contributor and the Companies if Buyer exercises its rights to access any assets of the Companies under this Section 5.2(a). Neither Buyer nor its Representatives shall contact any of the employees (if any), customers, suppliers, or parties that have business relationships with any Company in connection with the Transactions without the specific prior written authorization of Contributor. For purposes of clarification, Buyer and its Representatives shall be entitled, at its sole cost and expense, to have the Property surveyed and permitted to conduct non-invasive physical inspections; providedenvironmental assessments, howeverincluding any Phase I environmental site assessments in accordance with ASTM Standard E1527-13, that but Buyer and its Representatives shall not be entitled to collect any air, soil, surface water water, or ground water samples samples, nor to perform any invasive or destructive sampling on, under, at, or from the Leased Real Property. Buyer shall hold in confidence all information disclosed to Buyer or its Representatives hereunder on the Propertyterms and subject to the conditions contained in the Confidentiality Agreement. Notwithstanding anything to the contrary in this Section 5.2(a), Buyer shall have no right of access to, and neither Contributor nor any of its Affiliates shall have any obligation to provide any information (i) relating to bids received from others in connection with the Transactions and information and analysis (including financial analysis) relating to such bids or (ii) the disclosure of which could reasonably be expected to (A) jeopardize any privilege available to Contributor or any of its Affiliates, (B) cause Contributor or any of its Affiliates to breach a contract, or (C) result in a violation of Law; provided that, in the event that the restrictions in clause (ii) of this sentence apply, Contributor shall provide Buyer with a reasonably detailed description of the information not provided, and Contributor shall cooperate in good faith to design and implement alternative disclosure arrangements to enable Buyer to evaluate such information without violating such Law or contract or jeopardizing such privilege. Promptly upon completion of any such entryaccess, Buyer shall repair at its sole expense any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company, or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelsaccess.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify indemnify, defend, and hold harmless SellerContributor, its Affiliates Affiliates, and its and their respective Representatives for any and all liabilities or Losses incurred by SellerContributor, its Affiliates Affiliates, or its or their respective RepresentativesRepresentatives arising solely as a result of actions taken by Buyer or its Representatives pursuant to the access rights under Section 5.2(a), or including any Proceedings by any of Buyer’s Representatives, Representatives for any injuries or property damage arising out of the access and other rights under this Section 6.2while present, caused by any of Buyer’s Representatives while present on the PropertyEXCEPT TO THE EXTENT THAT SUCH LOSSES RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF CONTRIBUTOR, ITS AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES. THE PARTIES ACKNOWLEDGE THAT THE INTENT OF THIS SECTION 5.2(B) IS CLEAR AND UNEQUIVOCAL AND THIS STATEMENT CONSTITUTES CONSPICUOUS NOTICE.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Contribution Agreement (Kayne Anderson Acquisition Corp)
Access of Buyer. (a) During the Interim Period, Seller will provide, and will cause the Acquired Companies to provide, provide Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, books and records Assets of the Acquired Companies and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired the Assets of the Companies, but only to the extent that such access (i) does not unreasonably interfere with the business of Seller and or its Affiliates or the Businesses safe commercial operations of the Acquired Companies, that such access Assets of the Companies and (ii) is reasonably related to the requesting PartyBuyer’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that (A) Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates and (iiB) impose reasonable restrictions Buyer shall and shall cause its Representatives to observe and comply with all health, safety and security requirements for safety purposesof each of the Companies. Buyer shall be entitledhold in confidence all such information on the terms and subject to the conditions contained in the Confidentiality Agreement, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that if the Confidentiality Agreement was executed by an Affiliate of Buyer, then Buyer shall not hereby agrees to be entitled bound by and to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on comply with the Property. Promptly upon completion terms and conditions of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company, or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelsConfidentiality Agreement.
(b) During Buyer understands that Seller has had discussions with its management and employees regarding the Interim Periodsales process and strategy, in no event including preparation and negotiation of this Agreement, the Schedules hereto and the other documents contemplated herein, and that Buyer shall not have access to any information surrounding such discussions, including any internal drafts of this Agreement, information regarding any other bids for the Companies or the bid process as a whole and Buyer or hereby agrees that it shall not have any rights to any such information and shall not request any of Buyer’s Affiliates hold the Companies, their management or their employees to provide to it any meetings withsuch information, and further agrees that if it is provided or otherwise communicate withencounters any such information, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent that it will not be unreasonably withheld, conditioned or delayed). At use it in any such meeting consented to by disputes with Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of Notwithstanding anything to the access and other rights under contrary in this Section 6.25.2, Buyer shall have no right of access to, and neither Seller nor any of its Affiliates shall have any obligation to provide any information the disclosure of which (1) could reasonably be expected to jeopardize any privilege available to Seller or its Affiliates, (2) would cause Seller or its Affiliates to breach a confidentiality obligation, or (3) would result in a violation of Law.
(d) Buyer agrees to indemnify and hold harmless Seller, its Affiliates and their respective Representatives for any and all liabilities liabilities, losses, costs or Losses expenses incurred by Seller, its Affiliates or their respective RepresentativesRepresentatives arising out of the access rights under this Section 5.2, or including any Claims by any of Buyer’s Representatives, Representatives for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Real Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 1 contract
Access of Buyer. (a) During the Interim PeriodPeriod Seller shall, or Seller will provide, and will shall cause the Acquired Companies to provide, (i) give Buyer and its Representatives reasonable access to the Books and Records and the properties of the Acquired Companies and shall provide Buyer and its Representatives with reasonable accessinformation as to the Acquired Companies as reasonably requested by Buyer and (ii) permit Buyer to contact Seller’s employees, upon reasonable prior notice the Major Customer and the EPC Contractor in connection with the transactions contemplated by this Agreement. Any investigation or contact pursuant to this Section 6.2 shall (but in no event less than five (5x) Business Days’ prior written notice) and be conducted at Buyer’s sole expense, during normal business hourshours and in such manner so as not to interfere with the conduct of the respective businesses of Seller and the Acquired Companies and, to the propertiesextent so requested by any Acquired Company, books and records under the supervision of a Representative of the applicable Acquired Companies Company, and (y) not be conducted without prior notice to, and approval of, the appropriate officers applicable Acquired Company. Notwithstanding the foregoing, Buyer shall not (A) conduct any invasive sampling or testing of any soil, surface water, or groundwater typically referred to as a ‘Phase II’ environmental site assessment, or (B) have access to any information if doing so could violate any Contract or Law to which Seller, any Acquired Company or any of their respective Affiliates is a party or is subject or which such Person believes in good faith could jeopardize any attorney-client or other legal privilege. Without limiting the foregoing, in the event that Seller does not provide access or information in reliance on clause (B) above, Seller shall (1) use its reasonable best efforts to communicate to the extent feasible, the applicable information in a way that would not violate the applicable Contract, Law or privilege and employees (2) without limiting Seller’s obligations under the preceding clause (1), use its commercially reasonable efforts to cause any confidentiality obligations to be waived under such applicable Contracts. Buyer shall, and Buyer shall cause all of its Representatives to, abide by Seller’s and any third party’s safety rules, regulations and operating policies while conducting Buyer’s due diligence investigation.
(b) Buyer shall indemnify Seller and its Affiliates who have significant responsibility for one from and against any and all liabilities arising out of, resulting from or more Acquired Companiesrelating to any personal injury to, but only to or property damage caused by, Buyer’s Representatives during the extent that such access does not unreasonably interfere with the business course of Seller and its Affiliates any office visit, field visit, environmental property assessment, conduct of any Survey or the Businesses of the Acquired Companies, that such access is reasonably related to the requesting Party’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s other physical due diligence investigation conducted by Buyer or any Representative of its Affiliates’ safety policies, protocols and requirements; provided, however, that Seller shall have the right to (i) have a Representative present for any permitted communication Buyer with employees or officers of Seller or its Affiliates and (ii) impose reasonable restrictions and requirements for safety purposes. Buyer shall be entitled, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that Buyer shall not be entitled to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated respect to the Acquired Companies, the Business of any Acquired CompanyEVEN IF SUCH DAMAGES ARISE OUT OF OR RESULT FROM, or the ProjectsIN WHOLE OR IN PART, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluationTHE SOLE, energyACTIVE, natural gasPASSIVE, fuel oil or other fuel price curves or projectionsCONCURRENT OR COMPARATIVE NEGLIGENCE, or other economic predictive models.
(b) During the Interim PeriodSTRICT LIABILITY OR OTHER FAULT OF, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings withOR THE VIOLATION OF LAW BY, or otherwise communicate withSELLER OR ANY OF ITS AFFILIATES OR REPRESENTATIVES, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate thereinEXCEPTING ONLY THOSE DAMAGES ACTUALLY RESULTING ON THE ACCOUNT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER OR ANY OF ITS AFFILIATES OR REPRESENTATIVES.
(c) Buyer assumes None of Seller, any and all risks Acquired Company or any of Loss associated with their respective Representatives makes any representation or arising out warranty as to the accuracy of the access and other rights under any information provided pursuant to this Section 6.2, and Buyer agrees may not rely on the accuracy of any such information, in each case other than as expressly set forth in the representations and warranties contained in Article III or Article IV. All information provided or made available to indemnify and hold harmless Seller, its Affiliates and their respective Representatives for any and all liabilities Buyer or Losses incurred by Seller, its Affiliates or their respective Representatives, or by any of Buyer’s Representatives, for any injuries or property damage arising out of its Representatives will be subject to the access Confidentiality Agreement. Buyer acknowledges and other rights agrees that it shall be deemed to be a “Representative” under this Section 6.2, caused by any of Buyer’s Representatives while present on the PropertyConfidentiality Agreement.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller Buyer shall, and after the Closing shall use Commercially Reasonable Efforts to cause the Acquired CompaniesCompanies to, preserve and its keep the Books and their respective Representatives, to provide to Buyer, Records for at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with least six years following the Closing Date or for such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties longer period as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall may be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this AgreementLaw.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Arc Logistics Partners LP)
Access of Buyer. (a) During the Interim Period, Seller will shall provide, and will shall cause the Acquired Companies Targets to provide, Buyer and its Affiliates and Representatives with reasonable access, as Buyer may reasonably request during regular business hours and upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written advance notice) and during normal business hours, to (i) their respective personnel, officers and directors, (ii) the propertiesBooks and Records, books Permits, Contracts and records other information of the Acquired Companies and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one Targets or more Acquired Companies, but only otherwise related to the extent Business and (iii) the offices, plants, facilities and properties of the Targets, in each case, as Buyer may reasonably require in relation to Buyer’s obligations and rights hereunder; provided, however, that (w) such access does not unreasonably interfere with the business of Seller and its Affiliates or the Businesses of the Acquired Companies, that such access is reasonably related to the requesting Party’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers operations of Seller or its Affiliates or the safe commercial operations of the Targets, (x) Buyer shall, and shall cause its authorized Affiliates and Representatives to, observe and comply with all health, safety and security requirements at any plants and other facilities of the Targets that they may access, (iiy) impose reasonable restrictions Buyer and requirements for safety purposes. Buyer shall be entitled, at its sole cost authorized Affiliates and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that Buyer Representatives shall not be entitled to collect any air, soil, surface water, ground water or ground water building material samples nor to perform any invasive or destructive sampling on any plants and other facilities of the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure Targets to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company, or the Projects, or which they may access and (z) not being Seller shall have the right to have a Representative of proprietary models its choice present at all times during any such inspections conducted at or on the offices, plants, facilities or properties of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelsthe Targets.
(b) During Notwithstanding anything to the Interim Periodcontrary in this Section 6.02, (i) Buyer and its Affiliates and Representatives shall have no right of access to, and neither Seller nor any of its Affiliates shall have any obligation to provide any information the disclosure of which (1) could reasonably be expected to jeopardize any privilege available to Seller, Seller’s Affiliates or its and their respective Representatives, (2) would cause Seller, Seller’s Affiliates or its and their respective Representatives to breach any confidentiality obligations, (3) would be reasonably likely to result in a violation of Law in the sole discretion of Seller or such Representative or Affiliate, or (4) is reasonably likely to be, in no event shall Buyer the sole discretion of Seller or any such Representative or Affiliate, competitively sensitive to the Business, the Targets or Seller and (ii) without the written consent of Seller, none of Buyer, Buyer’s Affiliates hold or its and their respective Representatives shall contact any meetings withpersonnel, or otherwise communicate withofficers, any directors, suppliers, other customers, distributors or vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to the Targets concerning the transactions contemplated hereby or by Seller, a Representative of Seller shall be entitled to participate thereinthe other Transaction Agreements.
(c) Buyer assumes any Any nonpublic information provided to or obtained by Buyer, its Affiliates or its and all risks of Loss associated with or arising out of the access and other rights under their respective Representatives pursuant to this Section 6.26.02 will be subject to that certain Confidentiality Agreement, dated July 27, 2011, by and among Parent, Seller and 3D Systems (the “Confidentiality Agreement”). Buyer agrees to, and agrees to cause its Affiliates and Representatives to, be bound by and comply with the provisions set forth in the Confidentiality Agreement as if such provisions were set forth in full herein and such provisions are hereby incorporated herein by reference.
(d) Buyer agrees to indemnify and hold harmless Seller, Seller’s Affiliates and its Affiliates and their respective Representatives for any and all liabilities or Losses incurred by such Seller, its Seller’s Affiliates or its and their respective Representatives, or by any of Buyer’s Representatives, Representatives for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Leased Real Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 1 contract
Access of Buyer. (a) During Buyer acknowledges that Seller has had discussions with certain Company Employees regarding the sale of the Acquired Interests, including the preparation and negotiation of this Agreement and the other Transaction Documents, and that Buyer shall not have access (before or after the Closing) to any information related to such discussions, including any internal drafts of this Agreement or other Transaction Documents, or any information regarding any other bids for the Acquired Companies or specifically related to the sale process for the Acquired Companies and the activities of Seller in connection therewith, and Buyer hereby agrees that it shall not have any rights to any such information; provided that nothing in this Section 6.02(a) waives Buyer’s rights to access, request and use any factual information concerning the Acquired Companies, the Assets or the Business. Any communications between the Acquired Companies, on the one hand, and Sidley Austin LLP, on the other hand, relating to the negotiation, preparation, execution and delivery of this Agreement or any other Transaction Documents, and the consummation of the transaction contemplated hereby and thereby, shall be deemed to be attorney-client privileged, and the expectation of client confidentiality relating thereto shall belong solely to the Seller.
(b) Subject to Section 6.02(a), during the Interim Period, Seller will provide, and will shall cause the Acquired Companies Company to provide, provide Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, books and records Assets of the Acquired Companies and the appropriate officers and employees of Seller and its Affiliates the Company who have significant responsibility for one or more the Assets of the Acquired Companies, but only to the extent that such access (i) does not unreasonably interfere with the business of Seller and its Affiliates or the Businesses Business of the Acquired Companies, that such access Companies or the safe commercial operations of the Assets of the Acquired Companies and (ii) is reasonably related to the requesting PartyBuyer’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that (A) Seller and the Company shall have the right to (i) have a Representative present for any permitted communication regarding the Company’s operation of the Business, (B) Buyer shall and shall cause its Representatives to observe and comply with employees all health, safety and security requirements of the Company and (C) Buyer shall not conduct any environmental sampling, testing or officers other intrusive or invasive indoor or outdoor investigation of Seller air, surface water, groundwater, soil or anything else at or in connection with the Assets of the Acquired Companies without Seller’s prior approval, which approval may be withheld in Seller’s sole discretion. Buyer shall, and shall cause its Affiliates and (ii) impose reasonable restrictions Representatives to, hold in confidence all such information on the terms and requirements for safety purposes. Buyer shall be entitled, at its sole cost and expense, subject to have the Property surveyed and to conduct non-invasive physical inspectionsconditions contained in the Confidentiality Agreement; provided, however, that if the Confidentiality Agreement was executed by an Affiliate of Buyer, then Buyer shall not hereby agrees to be entitled bound by and to collect any aircomply with the terms and conditions of such Confidentiality Agreement as if Buyer were such Affiliate of Buyer. Notwithstanding the foregoing, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company, or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive models.
(b) During during the Interim Period, Buyer shall have no right of access to, and none of Seller, the Acquired Companies or their respective Affiliates shall have any obligation to provide any information, the disclosure of which (1) would reasonably be expected in no event the opinion of counsel to jeopardize any privilege available to Seller, the Acquired Companies or their respective Affiliates, (2) would cause Seller, the Acquired Companies or their respective Affiliates to breach a confidentiality obligation to any third party that is not waived after commercially reasonable efforts of Seller, (3) would result in a violation of Law; provided, further, that, in each case, Seller shall notify Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably in writing that information has been withheld, conditioned or delayed). At provide the reason that the information was withheld, and, where possible, redact such withheld information but otherwise deliver any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate thereindocuments containing the withheld information.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify and hold harmless Seller, its the Acquired Companies and their respective Affiliates and any of their respective Representatives for any and all liabilities or Losses incurred by Seller, its the Acquired Companies, any of their respective Affiliates or their respective RepresentativesRepresentatives arising out of the access rights under this Section 6.02, or including any Claims by any of Buyer’s Representatives, Representatives for any injuries or property damage arising out of while accessing any Assets purported to be held or used by Seller or the access and other rights under this Section 6.2Acquired Companies, except to the extent caused by any the gross negligence or willful misconduct of Buyer’s Representatives while present on the PropertySeller or an Acquired Company.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim PeriodBuyer agrees that Buyer will not contact customers, Seller shallpotential customers, and shall use Commercially Reasonable Efforts to cause the Acquired Companiessuppliers, and its and their respective Representativesvendors, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business contractors or operations agents of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies or the Company Employees with respect to carry out their respective duties as such and (ii) none this Agreement, the transactions contemplated hereby or the Business of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including without the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by prior written consent of Seller (which approval shall not consent may be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred withheld by Seller or any of in its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companiessole discretion). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (New Jersey Resources Corp)
Access of Buyer. (a) During the Interim Period, Seller will provide, and will cause the Acquired Companies Company to provide, provide Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, books Company’s Assets and records of the Acquired Companies and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired Companiesthe Company’s Assets, but only to the extent that such access does not unreasonably interfere with the business of Seller and its Affiliates Business or the Businesses safe commercial operations of the Acquired Companies, that such access is reasonably related to the requesting PartyCompany’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirementsAssets; provided, however, that (A) Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers the Facility Operators and their Representatives regarding the Company’s operation of the Business, (B) Buyer shall and shall cause its Representatives to observe and comply with all health, safety and security requirements of the Company, and (C) Buyer shall have the right to conduct commercially reasonable and appropriately focused Phase II environmental testing of any and all recognized environmental conditions, including any historical recognized environmental conditions, controlled recognized environmental conditions and investigations of any potential Release identified in a Phase I Environmental Site Assessment conducted by Buyer, Seller or its any of their respective Affiliates with respect to any Assets or Real Property (such Phase I or Phase II reports collectively referred to as Buyer’s “Environmental Assessment”); provided, that Buyer agrees to the contemporaneous sharing of the results of such Environmental Assessment (including preliminary lab data and (iidraft reports to the extent available to Buyer and not previously available to Seller) impose reasonable restrictions and requirements for safety purposeswith Seller; provided, further, that Buyer shall not conduct any unreasonably intrusive environmental sampling or testing or unreasonably interfere with the Company’s ongoing operations. Buyer shall be entitledhold in confidence all such information on the terms and subject to the conditions contained in the Confidentiality Agreement, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that if the Confidentiality Agreement was executed by an Affiliate of Buyer, then Buyer shall not hereby agrees to be entitled bound by and to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on comply with the Propertyterms and conditions of such Confidentiality Agreement. Promptly upon completion of any such entryNotwithstanding the foregoing, Buyer shall repair have no right of access to, and none of Seller, the Company or any damage caused by such entry. Any of their Affiliates shall have any obligation to provide any information, the disclosure of which (1) would reasonably be expected in the opinion of counsel to Buyer pursuant jeopardize any legal privilege available to Seller, the foregoing shall be subject to such disclosure (w) not violating Company or any applicable Lawsof their Affiliates, (x2) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companieswould cause Seller, the Business of any Acquired Company, Company or the Projectstheir Affiliates to breach a confidentiality obligation, or (z3) not being would result in a violation of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelsLaw.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify and hold harmless Seller, its the Company, their Affiliates and any of their respective Representatives for any and all liabilities liabilities, losses, costs or Losses expenses incurred by Seller, its the Company, any of their Affiliates or their respective RepresentativesRepresentatives arising out of the access rights under this Section 6.02, or including any Claims by any of Buyer’s Representatives, Representatives for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by while accessing any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts Assets purported to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business be held or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing used by Seller or the CompaniesCompany, except to the extent caused by the gross negligence or willful misconduct of Seller, the Company or their respective Representatives.
(c) Buyer may contact customers or potential customers of the Company, provided that Buyer may only do so with the prior written consent of Seller (which consent may be withheld by Seller in its sole discretion). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (USD Partners LP)
Access of Buyer. (a) During the Interim Period, Seller will provide, and provide (or will cause the Acquired Companies each Company to provide, ) Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, books and records Assets of the Acquired Companies such Company and the appropriate officers and employees of Seller and such Company (or, as appropriate, its Affiliates Affiliates) who have significant responsibility for one or more Acquired Companiesthe Assets of such Company, but only to the extent that such access (i) does not unreasonably interfere with the business of Seller and its Affiliates Business or the Businesses safe commercial operations of the Acquired CompaniesAssets of such Company (or, that such access as appropriate, its Affiliates) and (ii) is reasonably related to the requesting PartyBuyer’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that (A) Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller such Company or its Affiliates Affiliates, (B) Buyer shall and shall cause its Representatives to observe and comply with all generally applicable health, safety and security requirements of such Company and (iiC) impose reasonable restrictions and requirements for safety purposes. Buyer shall be entitlednot conduct any environmental sampling or testing, at its sole cost and expenseexcept for the completion of a Phase I environmental review, to have or otherwise make direct contact identifying the Property surveyed and to conduct non-invasive physical inspectionsCompany with regulators of such Company, without receiving the prior written consent of the Seller; provided, however, Buyer shall be permitted to contact the New Mexico State Land Office and Bureau of Land Management after reasonable prior notice to and consultation with Seller, such notice to include a general description of the matters Buyer desires to discuss and address with the New Mexico State Land Office and Bureau of Land Management. Buyer shall hold in confidence all such information on the terms and subject to the conditions contained in Section 6.11. Notwithstanding the foregoing, Buyer shall have no right of access to, and none of the Companies, Seller nor any of their respective Affiliates shall have any obligation to provide any information, the disclosure of which (1) would reasonably be expected in the opinion of counsel to jeopardize any privilege available to Seller, the Companies or any of their respective Affiliates, (2) would cause Seller, the Companies or any of their respective Affiliates to breach a Material Contract or express confidentiality obligation, or (3) would result in a violation of Law.
(b) Buyer understands that Seller has had discussions regarding a potential sale of the Interests and the preparation and negotiation of this Agreement, the Schedules hereto and the other documents contemplated herein, and that, (x) except to the extent discovery rules would otherwise permit review of such information by Buyer or the Companies if such information were in the possession of Seller,(y) except in the case of any allegation of fraud and (z) excluding information related to this Agreement (including the representations and warranties and covenants set forth herein and the Schedules and Exhibits attached hereto), (i) Buyer and the Companies shall not be entitled to collect use in connection with any airdisputes against Seller or the Companies (before or after Closing) any of Seller’s or the Companies’ internal drafts of this Agreement or emails or other written information (including in electronic form) relating to any potential sales process involving the Interests, soil, surface water or ground water samples nor and (ii) Buyer hereby agrees that (A) it shall not have any rights to perform any invasive or destructive sampling on the Property. Promptly upon completion of any such entryinformation and (B) it shall not request any of the Companies, Buyer shall repair any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company, or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining their respective Representatives to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive models.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At provide to it any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate thereininformation.
(c) Buyer assumes any During the Interim Period and all risks of Loss associated with or arising out of for ninety (90) days following the access and other rights under this Section 6.2Closing Date, and the Buyer agrees to indemnify and hold harmless SellerSeller and the Companies, its any of their respective Affiliates and their respective Representatives for any and all liabilities liabilities, losses, costs or Losses expenses incurred by SellerSeller or the Companies, its any of their respective Affiliates or their respective RepresentativesRepresentatives arising out of the access rights under this Section 6.2, or including any Claims by any of Buyer’s Representatives, Representatives for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by while accessing any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activitiesAssets; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its AffiliatesTHIS INDEMNITY SHALL NOT APPLY TO ANY SUCH DAMAGE, including the Acquired CompaniesINJURY, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this AgreementSICKNESS OR DEATH WHICH WAS CAUSED OR CONTRIBUTED TO BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER AND SELLER’S REPRESENTATIVES.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Summit Midstream Partners, LP)
Access of Buyer. (a) During From the date hereof until the Closing (the “Interim Period”), Seller will provide, and will cause the Acquired Companies to provide, provide Buyer and its Representatives with reasonable full access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, books and records Assets of the Acquired Companies and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired CompaniesAffiliates, but only to the extent that such access does not unreasonably interfere with the business of Seller and or its Affiliates or the Businesses safe commercial operations of the Acquired Assets of the Companies, that such access is reasonably related to the requesting Party’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that (A) all such activities will be coordinated through a single person designated for such purpose by Seller, (B) Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates and (iiC) impose reasonable restrictions Buyer shall and shall cause its Representatives to observe and comply with all health, safety and security requirements for safety purposesof each of the Companies. Buyer shall be entitledhold in confidence all such information on the terms and subject to the conditions contained in the Confidentiality Agreement, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that if the Confidentiality Agreement was executed by an Affiliate of Buyer, then Buyer shall not hereby agrees to be entitled bound by and to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on comply with the Property. Promptly upon completion terms and conditions of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company, or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelsConfidentiality Agreement.
(b) During Notwithstanding anything to the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify and hold harmless Seller, its Affiliates and their respective Representatives for any and all liabilities or Losses incurred by Seller, its Affiliates or their respective Representatives, or by any of Buyer’s Representatives, for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing contrary in this Section 6.2(d5.2, Buyer shall have no right of access to, and neither Seller nor any of its Affiliates shall have any obligation to provide any information the disclosure of which (1) shall require could reasonably be expected to jeopardize any cooperation privilege available to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii2) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by would cause Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities breach a confidentiality obligation, or (ii3) any information utilized would result in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination a violation of this AgreementLaw.
Appears in 1 contract
Access of Buyer. (a) During the Interim Period, Seller will providethe Sellers will, and will at the Buyer’s sole expense, cause the Acquired Companies to provide, provide the Buyer and its Representatives with reasonable access, upon reasonable prior written notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, books and records of the Acquired Companies Companies, to the premises and the appropriate officers officers, O&M Agreement Workers (to the extent that such O&M Agreement Workers are made available by the applicable O&M Contractor and the Sellers will direct the O&M Contractors to make such O&M Workers available) and employees of Seller the Sellers and its their Affiliates who have significant responsibility for one or more Acquired Companies, but only to the extent that such access does not unreasonably interfere with or disrupt the business of Seller and its Affiliates or the Businesses of the Acquired CompaniesCompanies (or any of them), that such access is reasonably related to the requesting Party’s obligations and rights hereunderhereunder or to prepare to operate the Business following the Closing (a “Permitted Purpose”), and subject to reasonable compliance with the Sellers’ and their applicable Laws and Seller’s or any of its Affiliates’ safety and security policies, protocols and requirementsrequirements and all applicable Laws and Contracts (including each relevant O&M Agreement) or Permits to which the Sellers, the Acquired Companies or any of their Affiliates are subject or a party; provided, howeverthat the Buyer, its Affiliates, and their respective Representatives, as applicable, shall use commercially reasonable efforts to perform all on-site reviews and all communications with any Person in as expeditious and efficient manner as possible; provided, further, that Seller the Sellers shall have the right to (i) to have a Representative present for any permitted communication with employees or officers of the applicable Seller or its Affiliates and or (except as otherwise provided in Section 6.13) any O&M Agreement Workers; (ii) to impose reasonable restrictions and requirements for safety purposes; (iii) not provide the Buyer or its representatives with access to materials or information that is subject to obligations of confidentiality owed to any third party or that is subject to attorney-client or other applicable legal privileges or protections that would be adversely affected by the disclosure of such materials or information to the Buyer or its Representatives (provided that in any such case, the applicable Seller shall, if reasonably requested by Buyer, enter into a customary joint-defense agreement or similar arrangement intended to enable Buyer to review such information if the parties thereto, acting in good faith and on the advice of counsel, are able to conclude doing so would not be reasonably likely to destroy or limit such privilege); and (iv) not to provide any information or allow any inspection which the Sellers reasonably believe they may not provide to the Buyer or allow by reason of applicable Law. The Sellers shall direct the O&M Contractors to cause the O&M Agreement Workers of the Acquired Companies to, and shall cause any officers, directors or employees of the Acquired Companies to, cooperate with Buyer and its representatives in connection with a Permitted Purpose. The Buyer shall be entitled, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that (1) the Buyer shall not be entitled have any right to use, control, operate, interact with, connect in any way to (physically or logically) or independently access any computer software, databases, networks, hardware, data center facilities or contracted services wherever located (including any data therein) of the Acquired Companies, and (2) the Buyer shall not collect any air, soil, surface water or ground water samples nor to shall it perform any invasive or destructive sampling environmental or subsurface investigation, including any “Phase II” environmental site assessment or similar work (including geotechnical work) on the PropertyProperty without the Sellers’ prior written consent, such consent to be granted or withheld in Sellers’ sole discretion. Promptly upon completion of any such entry, the Buyer shall repair any damage caused by such entry. Any disclosure to the Buyer pursuant to the foregoing shall be subject to such disclosure (v) not resulting in a breach of any Contract with a third party or which would otherwise expose any Seller or its Affiliates (including, prior to Closing, the Acquired Companies) to a material risk of liability, (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of any Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business business of any Acquired CompanyCompany (including its Business), or the Projects or the ▇▇▇▇ Projects, or (z) not being of proprietary models of any Seller or any of its their Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive models. Without limiting the foregoing, in the event that any of the Acquired Companies does not provide access, information or documentation (or any portion thereof) pursuant to this Section 6.2, it shall promptly (and in any event not later than two (2) Business Days following receipt from or on behalf of Buyer of a request for such access, information or documentation (or any portion there) pursuant to this Section 6.2) reasonably cooperate with the Buyer to communicate the applicable information in a way that would not violate the applicable Law or agreement, or risk waiver of such privilege, including by using commercially reasonable efforts to obtain the required consent of any third party necessary to provide such disclosure or reasonably cooperating with Buyer to develop an alternative to providing such information.
(b) During the Interim Period, in no event shall the Buyer or any of the Buyer’s Affiliates or Representatives hold any meetings with, or otherwise communicate withwith any supplier, any suppliersdistributor, lender, agent, employee, other vendors vendor, customer or customers other material business relation, including any other equity owner, lender, off-taker, landlord, interconnection provider and other service provider (or Representatives of any of the foregoing) of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project Projects or any Acquired Company without the prior consent of the applicable Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by such Seller, a Representative of such Seller shall be entitled to participate therein.
(c) Buyer assumes any The Buyer, its Affiliates and their respective Representatives shall hold in confidence all risks of Loss associated with confidential information obtained from or arising out delivered on behalf of the access Sellers, the Acquired Companies or its or their respective Affiliates, or Representatives, whether or not relating to the business of the Acquired Companies, in accordance with the provisions of the Confidentiality Agreement which, notwithstanding anything contained therein, shall remain in full force and other rights under effect following the termination of this Section 6.2, and Agreement in accordance with its terms.
(d) The Buyer agrees to indemnify and hold harmless Sellerthe Sellers, its their Affiliates and their respective Representatives for any and all liabilities liabilities, losses, costs or Losses expenses incurred by Sellerthe Sellers, its their Affiliates or their respective Representatives, or by any of the Buyer’s Representatives, Representatives for any injuries or property damage damage, or in connection with any mechanics’, materialmen’s, carriers’, workers’, repairers’ and other similar liens, in all cases arising out of of, or incurred in connection with, the access and other rights under this Section 6.2, 6.2 caused by any of the Buyer’s , its Affiliates or its Representatives while present on the Property.
(de) In connection with Buyer’s and its Affiliates financing activities With respect to any Property, during the Interim Period:
(i) Buyer, Seller including any surveyor or similar service provider, shall be able to access any Project in accordance with Section 6.2(a) to permit Buyer to obtain updates to the Property Existing Survey or a new survey of any Property (each a “Property Updated Survey”). The Sellers shall, and shall use Commercially Reasonable Efforts direct the O&M Contractors to cause the O&M Agreement Workers or appropriate Representative of the Sellers and the Acquired Companies, and its and their respective Representatives, to provide to BuyerCompanies to, at Buyer’s sole cost and expense, all cooperation reasonably cooperate with Buyer in obtaining any Property Updated Survey, including timely responding to any questions or providing reasonable information requested by Buyer or its surveyor.
(ii) The Buyer may obtain updates to the Property Title Commitments or new title commitments. The Sellers shall, and shall direct the O&M Contractors to cause the O&M Agreement Workers or appropriate Representative of the Sellers and the Acquired Companies to, at Buyer’s sole cost and expense, reasonably cooperate with Buyer in obtaining updated Property Title Commitments, including timely responding to any questions or providing reasonable information requested by the Buyer or the Title Company providing any updated Property Title Commitment. At or prior to Closing, the Sellers and each Acquired Company, as necessary or appropriate, shall execute and deliver a customary owner’s title affidavit (the form of which is attached hereto as Exhibit F), subject to such modifications as may be needed to make the affidavit factually correct as of the Closing or to address title curative issues that is customary in connection Sellers agree to address. For the avoidance of doubt, Sellers shall not be obligated to (1) deliver any indemnities to the Title Company or (2) except for cooperating with such financing activities; provided, however, that (i) nothing Buyer as expressly described in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies6.2(e), or otherwise impairfacilitate the final issuance of a title policy. However, without limiting the generality of the foregoing, the Sellers shall consider in good faith any reasonable request from the Buyer or its Title Company to address at Buyer’s sole cost and expense, any material respecttitle curative issues that can be addressed in a commercially reasonable manner. For the avoidance of doubt, the ability issuance of any Representative title policy insuring any of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval Property shall not be unreasonably withhelda condition to Closing and the failure of Buyer to obtain a satisfactory title policy, conditioned or delayedany title policy at all, shall not be deemed a breach by Sellers of this Section 6.2(e)(ii).
(iii) The Sellers shall, and shall cause any employee, O&M Contractor or appropriate representative to, at ▇▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to request an estoppel certificate, upon written request from Buyer, from any counterparty to any Property Document (A) that is a lease or is otherwise executory in nature, and (B) that is the insured interest under a Property Title Commitment. In connection with any such written request, the Buyer shall indemnifyprepare an estoppel certificate in the form required or contemplated by the underlying Property Document, defend if applicable, or otherwise in form and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, substance reasonably acceptable to the extent arising out Sellers and the Buyer (including the Title Company and any financing source for the Buyer), which estoppel certificates, in the case of leases for a Project, may also address any requirement under any such lease for lessor consent to the consummation of the transactions contemplated under this Agreement. Sellers shall reasonably cooperate with the Buyer to request such estoppel certificate from each applicable counterparty under any such Property Document. If any Property Document would require payment to any third party to obtain such an estoppel (by way of example but not limitation, an estoppel fee or relating reimbursement of such third-party legal fees), such payments shall be at Buyer’s sole cost and expense. For the avoidance of doubt, the execution and delivery of such estoppel certificates by any counterparty to (i) any action taken applicable Property Document shall not be a condition to Closing, Sellers shall not incur any costs or cooperation provided by Seller or its Affiliates pursuant liability with respect to such estoppel certificates, and the failure to obtain from any such counterparty any requested estoppel certificates shall not be a breach of this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies6.2(e)(iii). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 1 contract
Access of Buyer. (a) During the Interim Period, Seller will provide, and will cause the Acquired Companies to provide, provide Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, books and records of the Acquired Companies and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired Companiesthe members of the Company Group and the Panther Creek Plant, but only to the extent that such access (i) does not unreasonably interfere with the business Business of Seller and or any of its Affiliates or the Businesses safe commercial operations of the Acquired Companies, that such access Panther Creek Plant and (ii) is reasonably related to the requesting PartyBuyer’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates and (ii) impose reasonable restrictions and requirements for safety purposes. Buyer shall be entitled, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that Buyer shall not be entitled to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company, or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelsAffiliates.
(b) During Furthermore, during the Interim Period, in no event Seller shall provide Buyer or any and its Representatives access at all times to the properties and facilities of the members of the Company Group, including the Panther Creek Plant. As part of such access, Buyer and its Representatives shall have the right to (i) conduct inspections and assessments of such properties and facilities and (ii) conduct the activities described on Schedule 6.3(b), provided that such activities shall be undertaken at Buyer’s Affiliates hold any meetings withcost and expense. Buyer shall, or otherwise communicate withand shall cause its Representatives to, any suppliersobserve and comply with all posted health, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without safety and security requirements at the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate thereinPanther Creek Plant.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to defend, indemnify and hold harmless Seller, its the members of the Company Group, and each of their respective Affiliates and their respective Representatives for any and all liabilities or Losses Damages incurred by Seller, its Affiliates or their respective Representatives, or by any of Buyer’s Representatives, for any injuries or property damage such Persons arising out of the access and other rights under this Section 6.26.3 EXCEPT FOR (I) BODILY INJURY OR DEATH TO ANY PERSON THAT IS EMPLOYED BY, caused by any of Buyer’s Representatives while present on the PropertyAND ON THE PAYROLL OF, SELLER OR ANY OF ITS AFFILIATES, (II) LIABILITIES THAT WERE EXISTING PRIOR TO SUCH INSPECTIONS OR (III) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY A MEMBER OF THE SELLER INDEMNIFIED PARTIES.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Equity Capital Contribution Agreement (Stronghold Digital Mining, Inc.)
Access of Buyer. (a) During the Interim Period, Seller Sellers will provide, and will cause the Acquired Companies to provide, provide Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the propertiesall Assets, books and records of the Acquired Companies records, Contracts, documents and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired the Project Companies, but only to the extent that (i) such access (A) does not unreasonably interfere with the business of Seller the Project Companies and its Affiliates or the Businesses of the Acquired Companies, that such access (B) is reasonably related to the requesting PartyBuyer’s obligations and rights hereunder, hereunder and subject to compliance with (ii) neither Sellers nor their Affiliates are prohibited from providing such access by the terms of any applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirementsContract; provided, however, that Seller (x) Sellers shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates the Project Companies and (iiy) impose reasonable restrictions and requirements for safety purposes. Buyer shall be entitledand shall cause its Representatives to observe and comply with all applicable health, at safety and security requirements of Sellers and the Project Companies. Neither Buyer nor its sole cost and expenseRepresentatives shall contact any of the employees, to customers, suppliers or parties that have business relationships with the Property surveyed and to conduct non-invasive physical inspections; providedProject Companies in connection with the transactions contemplated hereby without the specific prior written authorization of Sellers. For purposes of clarification, however, that Buyer shall not be entitled to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive sampling on, under, at or from the Property and, for purposes of clarification, the conducting of such physical inspections shall not be a condition to Closing. Buyer shall hold in confidence all information disclosed to Buyer or its Representatives hereunder on the Propertyterms and subject to the conditions contained in the Confidentiality Agreement. Notwithstanding anything to the contrary in this Section 7.2, Buyer shall have no right of access to, and none of the Sellers nor any of their respective Affiliates shall have any obligation to provide any information (1) relating to bids received from others in connection with the transactions contemplated by this Agreement and information and analysis (including financial analysis) relating to such bids or (2) the disclosure of which could reasonably be expected to (x) jeopardize any privilege available to any Seller or any of its respective Affiliates, (y) cause any Seller or any of its respective Affiliates to breach a Contract, or (z) result in a violation of Law; provided that in the case of (1) above, at Closing, the Company will be assigned the rights of any Seller or its respective Affiliates under all confidentiality agreements executed by third parties in connection with such bidding process. Promptly upon completion of any such entryaccess, Buyer shall repair at its sole expense any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company, or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelsaccess.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify and hold harmless each Seller, its respective Affiliates and its and their respective Representatives for any and all liabilities liabilities, losses, costs or Losses expenses incurred by such Seller, its respective Affiliates or its or their respective RepresentativesRepresentatives arising out of the access rights under this Section 7.2, or including any Claims by any of Buyer’s Representatives, Representatives for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller or any of its Affiliates, to the extent arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Black Hills Corp /Sd/)
Access of Buyer. (a) During the Interim Period, Seller will provide, and will cause the Acquired Companies to provide, provide Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and access during normal business hours, hours to the properties, books and records of the Acquired Companies Facilities and the appropriate officers and management employees of Seller and its Affiliates who have significant responsibility for one or more Acquired (including the Companies, but only ) in such a manner so as not to the extent that such access does not unreasonably interfere with the business or operations of Seller and or its Affiliates or (including the Businesses of the Acquired Companies, that such access is reasonably related to the requesting Party’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements); provided, however, that Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of Seller or its Affiliates and (ii) impose reasonable restrictions and requirements for safety or operational purposes. Buyer shall be entitled, at its sole cost and expense, to have visit the Property surveyed and to conduct non-invasive physical inspections; providedProperty. Notwithstanding the foregoing, however, that Buyer Seller shall not be entitled required to collect provide any air, soil, surface water information or ground water samples nor to perform allow any invasive or destructive sampling on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure inspection which it reasonably believes it may not provide to Buyer pursuant or allow by reason of applicable Law, which constitutes or allows access to the foregoing shall be subject to such disclosure (w) not violating any applicable Laws, (x) not resulting in the waiver of any information protected by attorney/client, work productclient privilege, or similar privilege, (y) not being of confidential information concerning the activities of which Seller or its Affiliates (other than is required to keep confidential or prevent access to by reason of contract, agreement or understanding with third parties if Seller has used reasonable best efforts to obtain the Acquired Companies) that is unrelated consent of such third party to such inspection or disclosure. Following the Closing, Seller shall be entitled to retain copies of all books and records relating to the Acquired Companies, ownership and/or operation of the Business of any Acquired Company, Companies or the Projects, or (z) not being of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelstheir respective businesses.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to indemnify and hold harmless Seller, its Affiliates and their respective Representatives for any and all liabilities or Losses incurred by Seller, its Affiliates or their respective Representatives, or by any of Buyer’s Representatives, for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during the Interim Period, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impair, in any material respect, the ability of any Representative of Seller or the Acquired Companies to carry out their respective duties as such and (ii) none of Seller, its Affiliates or the Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its the Companies, the Non-Company Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller Seller, the Companies, the Non-Company Affiliates, their Representatives or any of its Affiliates, to the extent other Person arising out of or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to the access rights under this Section 6.2(d) 6.01, including any Claims by any of Buyer’s Representatives for any injuries or in connection with such financing activities Losses while present on the Property unless caused by the gross negligence or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by willful misconduct of Seller or the Companies). This Section 6.2(d) shall survive the termination of this Agreement.
Appears in 1 contract
Access of Buyer. (a) During the Interim Period, Seller will provide, and will shall cause the Acquired Companies to provide, Buyer and its Representatives with reasonable access, upon reasonable prior notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, Contracts, books and records of the Acquired Companies and Companies, the appropriate officers and employees of the Acquired Companies, Seller and its Affiliates who have significant responsibility for one the Acquired Companies and, with the consent of Seller (which consent shall not be unreasonably withheld, conditioned or more Acquired Companiesdelayed), to the Facilities, but only to the extent that such access does not unreasonably interfere with the business Business of Seller and or any of its Affiliates or the Businesses safe commercial operations of the Acquired Companies, that such access Facilities or any Purchased Asset and is reasonably related to the requesting PartyBuyer’s obligations and rights hereunder, and subject to compliance with applicable Laws and Seller’s or any of its Affiliates’ safety policies, protocols and requirements; provided, however, that (i) Seller shall have the right to (i) have a Representative present for any permitted communication with employees or officers of the Acquired Companies, Seller or its Affiliates and Affiliates, (ii) impose Buyer shall, and shall cause its Representatives to, observe and comply with all health, safety and security requirements at any Facility or any Purchased Asset and (iii) Buyer shall not have access to the Excluded Records. For purposes of clarification, upon reasonable restrictions and requirements for safety purposes. prior notice to Seller, Buyer shall be entitled, at its sole cost and expense, to have the Property surveyed and permitted to conduct non-invasive physical inspectionsa Phase I environmental site assessment of the Real Property or any Purchased Asset; provided, however, provided that Buyer shall not be entitled entitled, without prior written consent of Seller, to collect any air, soil, surface water water, or ground water samples nor samples, or to perform any invasive or destructive sampling on, under, at or from the Real Property or any Purchased Asset. Buyer shall hold in confidence all information disclosed to Buyer or its Representatives hereunder on the Propertyterms and subject to the conditions contained in the Confidentiality Agreement. Promptly upon completion of any such entryNotwithstanding anything to the contrary in this Section 6.2, Buyer shall repair have no right of access to, and neither Seller nor any damage caused by such entry. Any of its Affiliates shall have any obligation to provide any information the disclosure of which would reasonably, upon advice of Seller’s counsel, be expected to Buyer pursuant jeopardize any privilege available to the foregoing shall be subject to such disclosure (w) not violating any applicable LawsSeller or its Affiliates, (x) not resulting in the waiver of any attorney/client, work product, or similar privilege, (y) not being of confidential information concerning the activities of cause Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Companybreach a confidentiality obligation, or the Projects, or (z) not being result in a violation of proprietary models of Seller or any of its Affiliates pertaining to energy project evaluation, energy, natural gas, fuel oil or other fuel price curves or projections, or other economic predictive modelsapplicable Law.
(b) During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Project or Acquired Company without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein.
(c) Buyer assumes any and all risks of Loss associated with or arising out of the access and other rights under this Section 6.2, and Buyer agrees to defend, indemnify and hold harmless Seller, its Affiliates and their respective Representatives for any and all liabilities or Losses incurred by Seller, its Affiliates or their respective RepresentativesRepresentatives arising out of any injury to any Person or property resulting from or caused by the activities of Buyer or its Representatives under this Section 6.2 while present on the Real Property, or any unauthorized access, including any Claims by any of Buyer’s Representatives, Representatives for any injuries or property damage arising out of the access and other rights under this Section 6.2, caused by any of Buyer’s Representatives while present on the Property.
(d) In connection with Buyer’s and its Affiliates financing activities during Real Property or the Interim Periodsite of any Purchased Asset, Seller shall, and shall use Commercially Reasonable Efforts to cause the Acquired Companies, and its and their respective Representatives, to provide to Buyer, at Buyer’s sole cost and expense, all cooperation reasonably requested by Buyer and that is customary in connection with such financing activities; provided, however, that (i) nothing in this Section 6.2(d) shall require any cooperation to the extent that it would unreasonably interfere with the business or operations of Seller or its Affiliates, including the Acquired Companies, or otherwise impairexcept, in any material respecteach case, as a result of the ability of any Representative of Seller gross negligence or the Acquired Companies to carry out their respective duties as such and (ii) none willful misconduct of Seller, its Affiliates or the any Acquired Companies shall be required to pay any commitment or other similar fee for which it is not advanced funds or incur any other liability in connection with such financing activities. Buyer shall promptly, upon request, reimburse Seller for all documented out-of-pocket costs and expenses (including reasonable advisor’s fees and expenses) incurred by Seller or its Affiliates, including the Acquired Companies, in connection with the cooperation provided pursuant to this Section 6.2(d). All non-public information regarding Seller and its Affiliates provided to Buyer, its Affiliates or its Representatives pursuant to this Section 6.2(d) shall be kept confidential by them in accordance with the Confidentiality Agreement, except for disclosure to potential lenders, investors, attorneys, accountants, rating agencies or their respective Representatives in connection with such financing activities subject, where applicable, to customary confidentiality provisions as approved in advance in writing by Seller (which approval shall not be unreasonably withheld, conditioned or delayed). Buyer shall indemnify, defend and hold harmless Seller, its Affiliates and their respective Representatives from and against any and all Losses actually suffered or incurred by Seller Company or any of its Affiliates, to the extent arising out of their respective Affiliates or relating to (i) any action taken or cooperation provided by Seller or its Affiliates pursuant to this Section 6.2(d) or in connection with such financing activities or (ii) any information utilized in connection therewith (other than information provided to Buyer in writing by Seller or the Companies). This Section 6.2(d) shall survive the termination of this AgreementRepresentatives.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Par Pacific Holdings, Inc.)