Standard Practice Environmental Site Assessments. Phase I Environmental Site Assessment Process (Publication Designation: E1527-05) (“Site Assessment”), and at the Company’s discretion, shall be accompanied by a representative of the Company. Upon the written request of Seller or the Company, Buyer shall furnish, free of costs, to the Company or Seller with a copy of any written report prepared by or for Buyer related to any Site Assessment of the properties and facilities as soon as reasonably possible after it is prepared. All environmental reports prepared by or for Buyer shall be maintained in strict confidence and for use solely in connection with the evaluation of the Company. Except for the obligations to provide reports to the Company or Seller as set forth in the preceding sentence, if the Closing does not occur, such reports, shall not be disclosed to any other party. (b) Buyer agrees that it will not, and will cause its respective representatives not to, use any information obtained by any such Person pursuant to this ARTICLE VII or otherwise in conjunction with the negotiation, execution, or consummation of the transactions contemplated in this Agreement for any purpose unrelated to the consummation of the transactions contemplated by this Agreement, except as and to the extent permitted by the terms of this Agreement or the Ancillary Agreements; provided, that, the foregoing shall not apply to any information that (i) is in the public domain, (ii) is published or otherwise becomes part of the public domain through no fault of Buyer or any of its Affiliates or (iii) becomes available to Buyer or any of its Affiliates on a non-confidential basis from a source that did not acquire such information (directly or indirectly) from Seller or Buyer or any of their respective Affiliates on a confidential basis. The Confidentiality Agreement shall apply with respect to the information furnished thereunder and hereunder and any other activities contemplated thereby. Buyer shall indemnify, defend and hold harmless the Company, Seller, Seller’s direct and indirect equity holders and any of their respective Affiliates from and against any and all claims, actions, causes of action, demands, assessments, losses, damages, liabilities, judgments, settlements, penalties, costs and expenses (including reasonable attorneys’ fees and expenses), of any nature whatsoever asserted against or suffered by the Company or Seller relating to, resulting from or arising out of examinations or inspections made by Buyer or its representatives pursuant to this Section 7.4; provided, however, that Buyer shall not have any liability arising out of the discovery of any existing environmental contamination or condition during any such examinations or inspections except in respect of its ownership of the Company. THE FOREGOING INDEMNIFICATION AND HOLD HARMLESS SHALL APPLY WHETHER OR NOT SUCH CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE OUT OF (i) NEGLIGENCE (INCLUDING SOLE NEGLIGENCE, SIMPLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXCLUDING THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF SELLER OR THE COMPANY OR (ii) STRICT LIABILITY. (c) From and after the Closing, Seller shall, and shall direct its Affiliates to, keep confidential and not disclose all information relating to the Company or its Subsidiaries or any of their respective businesses or assets (the “Restricted Information”), and shall not directly or indirectly use such Restricted Information for any purpose, except as and to the extent permitted by the terms of this Agreement or the Ancillary Agreements. The obligation shall continue indefinitely from the Closing Date and shall not apply to any information that (i) is in the public domain, (ii) is published or otherwise becomes part of the public domain through no fault of Seller or any of its Affiliates or (iii) becomes available to Seller or any of its Affiliates on a non-confidential basis from a source that did not acquire such information (directly or indirectly) from Seller or Buyer or any of their respective Affiliates on a confidential basis. Notwithstanding the foregoing, Seller may make disclosures required by Law and in connection with disputes hereunder; provided, however, that Seller, to the extent practicable, shall provide Buyer with prompt notice thereof so that Buyer, at its sole cost and expense, may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Section 7.4(c). In the event that such protective order or other remedy is not obtained or Buyer waives compliance with the provisions of this Section 7.4(c), Seller shall or shall cause the Person required to disclose such Restricted Information to furnish only that portion of the information that such Person is legally required, and, to the extent practicable, Seller shall exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment is accorded the Restricted Information so furnished. (d) From and after the Closing, any restrictions contained herein or in the Confidentiality Agreement relating to Buyer’s use or disclosure of the Restricted Information shall be null and void. (e) No later than May 20, 2013, Seller shall deliver to Buyer, the unaudited consolidated balance sheet and the related statement of income and retained earnings and of cash flows of the Company and the Subsidiaries as of and for the month ended March 31, 2013, prepared on a basis consistent with the Most Recent Financial Statements; provided that if the Closing Date shall occur prior to May 20, 2013, Seller will reasonably cooperate with Buyer and the Company in conjunction with the Company’s preparation of such financial statements. (f) Prior to and after the Closing, Seller shall provide Buyer access to the personnel, books and records of Seller, the Company and their respective Affiliates to the extent reasonably necessary to enable Buyer to prepare financial statements of the Company and its Subsidiaries in such form and covering such periods as may be required by any applicable securities Laws to be filed with the SEC. Without limiting the generality of the foregoing, Seller shall use commercially reasonable efforts to deliver or cause to be delivered or made available to Buyer on or before the 45th day after the Closing Date, the unaudited consolidated financial statements of the Company for the three month period ended March 31, 2013 and the related footnotes, which in each case shall have been reviewed by the independent public accountants of the Company, as shall be reasonably necessary for inclusion in Buyer’s current report on Form 8-K under the Exchange Act. Seller will use commercially reasonable efforts to deliver or cause to be delivered or made available to Buyer on or before the 65th day after the Closing Date, the report of the independent public accounts of the Company with respect to those portions of the financial statements to be delivered or made available under this Section 7.4(e) for which such report is required by Form 8-K. Furthermore, Seller shall use its commercially reasonable efforts to cause the independent public accountants of the Company to provide any consent necessary to the filing of such financial statements with the SEC and to provide such customary representation letters as are necessary in connection therewith. All of the financial statements, reports, opinions and related activities to be prepared, provided, delivered, made available or undertaken pursuant to this Section 7.4(e) shall be prepared, provided, delivered, made available and undertaken at the sole cost and expense of Buyer. (g) After the Closing, Buyer shall provide, and will cause the Company and the Subsidiaries to provide, Seller reasonable access during the Company’s regular business hours to personnel, books and records of the Company and the Subsidiaries in connection with, among other things, any insurance claims by, preparation of Tax returns by, Legal Proceedings against or investigations by a Governmental Authority of, Seller, Seller’s direct or indirect equity holders or any of their respective Affiliates or in order to enable Seller to comply with its obligations under this Agreement and each Ancillary Document. Seller shall be entitled, at its sole cost and expense, to make copies of the books and records to which it is entitled to access pursuant to this Section 7.4(e). In the event that Buyer desires to destroy (or permit to be destroyed) books and records of the Company or the Subsidiaries in respect of time periods ending or events that began on or prior to the Closing, Buyer shall give Seller 90 days prior written notice of such desire, and Seller shall have the right at its option and expense to, upon written notice to Buyer during such time period, take possession of such books and records within 180 days after the date of Buyer’s notice.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Atlas Pipeline Partners Lp)
Standard Practice Environmental Site Assessments. Phase I Environmental Site Assessment Process (Publication Designation: E1527-05) (“Site Assessment”), and at the Company’s discretion, shall be accompanied by a representative of the Company. Upon the written request of Seller or the Company, Buyer shall furnish, free of costs, to the Company or Seller with a copy of any written report prepared by or for Buyer related to any Site Assessment of the properties and facilities as soon as reasonably possible after it is prepared. All environmental reports prepared by or for Buyer shall be maintained in strict confidence and for use solely in connection with the evaluation of the Company. Except for the obligations to provide reports to the Company or Seller as set forth in the preceding sentence, if the Closing does not occur, such reports, shall not be disclosed to any other party.
(b) Buyer agrees that it will not, and will cause its respective representatives not to, use any information obtained by any such Person pursuant to this ARTICLE VII or otherwise in conjunction with the negotiation, execution, or consummation of the transactions contemplated in this Agreement for any purpose unrelated to the consummation of the transactions contemplated by this Agreement, except as and to the extent permitted by the terms of this Agreement or the Ancillary Agreements; provided, that, the foregoing shall not apply to any information that (i) is in the public domain, (ii) is published or otherwise becomes part of the public domain through no fault of Buyer or any of its Affiliates or (iii) becomes available to Buyer or any of its Affiliates on a non-confidential basis from a source that did not acquire such information (directly or indirectly) from Seller or Buyer or any of their respective Affiliates on a confidential basis. The Confidentiality Agreement shall apply with respect to the information furnished thereunder and hereunder and any other activities contemplated thereby. Buyer shall indemnify, defend and hold harmless the Company, Seller, Seller’s direct and indirect equity holders and any of their respective Affiliates from and against any and all claims, actions, causes of action, demands, assessments, losses, damages, liabilities, judgments, settlements, penalties, costs and expenses (including reasonable attorneys’ fees and expenses), of any nature whatsoever asserted against or suffered by the Company or Seller relating to, resulting from or arising out of examinations or inspections made by Buyer or its representatives pursuant to this Section 7.4; provided, however, that Buyer shall not have any liability arising out of the discovery of any existing environmental contamination or condition during any such examinations or inspections except in respect of its ownership of the Company. THE FOREGOING INDEMNIFICATION AND HOLD HARMLESS SHALL APPLY WHETHER OR NOT SUCH CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE OUT OF (i) NEGLIGENCE (INCLUDING SOLE NEGLIGENCE, SIMPLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXCLUDING THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF SELLER OR THE COMPANY OR (ii) STRICT LIABILITY.
(c) From and after the Closing, Seller shall, and shall direct its Affiliates to, keep confidential and not disclose all information relating to the Company or its Subsidiaries or any of their respective businesses or assets (the “Restricted Information”), and shall not directly or indirectly use such Restricted Information for any purpose, except as and to the extent permitted by the terms of this Agreement or the Ancillary Agreements. The obligation shall continue indefinitely from the Closing Date and shall not apply to any information that (i) is in the public domain, (ii) is published or otherwise becomes part of the public domain through no fault of Seller or any of its Affiliates or (iii) becomes available to Seller or any of its Affiliates on a non-confidential basis from a source that did not acquire such information (directly or indirectly) from Seller or Buyer or any of their respective Affiliates on a confidential basis. Notwithstanding the foregoing, Seller may make disclosures required by Law and in connection with disputes hereunder; provided, however, that Seller, to the extent practicable, shall provide Buyer with prompt notice thereof so that Buyer, at its sole cost and expense, may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Section 7.4(c). In the event that such protective order or other remedy is not obtained or Buyer waives compliance with the provisions of this Section 7.4(c), Seller shall or shall cause the Person required to disclose such Restricted Information to furnish only that portion of the information that such Person is legally required, and, to the extent practicable, Seller shall exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment is accorded the Restricted Information so furnished.
(d) From and after the Closing, any restrictions contained herein or in the Confidentiality Agreement relating to Buyer’s use or disclosure of the Restricted Information shall be null and void.
(e) No later than May 20, 2013, Seller shall deliver to Buyer, the unaudited consolidated balance sheet and the related statement of income and retained earnings and of cash flows of the Company and the Subsidiaries as of and for the month ended March 31, 2013, prepared on a basis consistent with the Most Recent Financial Statements; provided that if the Closing Date shall occur prior to May 20, 2013, Seller will reasonably cooperate with Buyer and the Company in conjunction with the Company’s preparation of such financial statements.
(f) Prior to and after the Closing, Seller shall provide Buyer access to the personnel, books and records of Seller, the Company and their respective Affiliates to the extent reasonably necessary to enable Buyer to prepare financial statements of the Company and its Subsidiaries in such form and covering such periods as may be required by any applicable securities Laws to be filed with the SEC. Without limiting the generality of the foregoing, Seller shall use commercially reasonable efforts to deliver or cause to be delivered or made available to Buyer on or before the 45th day after the Closing Date, the unaudited consolidated financial statements of the Company for the three month period ended March 31, 2013 and the related footnotes, which in each case shall have been reviewed by the independent public accountants of the Company, as shall be reasonably necessary for inclusion in Buyer’s current report on Form 8-K under the Exchange Act. Seller will use commercially reasonable efforts to deliver or cause to be delivered or made available to Buyer on or before the 65th day after the Closing Date, the report of the independent public accounts of the Company with respect to those portions of the financial statements to be delivered or made available under this Section 7.4(e) for which such report is required by Form 8-K. Furthermore, Seller shall use its commercially reasonable efforts to cause the independent public accountants of the Company to provide any consent necessary to the filing of such financial statements with the SEC and to provide such customary representation letters as are necessary in connection therewith. All of the financial statements, reports, opinions and related activities to be prepared, provided, delivered, made available or undertaken pursuant to this Section 7.4(e) shall be prepared, provided, delivered, made available and undertaken at the sole cost and expense of Buyer.
(g) After the Closing, Buyer shall provide, and will cause the Company and the Subsidiaries to provide, Seller reasonable access during the Company’s regular business hours to personnel, books and records of the Company and the Subsidiaries in connection with, among other things, any insurance claims by, preparation of Tax returns by, Legal Proceedings against or investigations by a Governmental Authority of, Seller, Seller’s direct or indirect equity holders or any of their respective Affiliates or in order to enable Seller to comply with its obligations under this Agreement and each Ancillary Document. Seller shall be entitled, at its sole cost and expense, to make copies of the books and records to which it is entitled to access pursuant to this Section 7.4(e). In the event that Buyer desires to destroy (or permit to be destroyed) books and records of the Company or the Subsidiaries in respect of time periods ending or events that began on or prior to the Closing, Buyer shall give Seller 90 days prior written notice of such desire, and Seller shall have the right at its option and expense to, upon written notice to Buyer during such time period, take possession of such books and records within 180 days after the date of Buyer’s notice.or
Appears in 1 contract
Sources: Purchase and Sale Agreement