Common use of Access to Records; Confidentiality Clause in Contracts

Access to Records; Confidentiality. (a) Between the date hereof and the Closing, the APL Parties shall, and shall cause their Affiliates to, give the WFSG Parties and their authorized representatives reasonable access, during regular business hours and upon reasonable advance notice, to the financial, title, tax, corporate and legal materials and operating data, records and information relating to the Subject Entities, the Appalachian Assets, the Appalachian Business and the businesses and operations of the APL Parties and their Affiliates related thereto, including the work papers used or created by the APL Parties or their representatives in connection with the preparation of the Audited Statement of Assets and Liabilities, and shall furnish to the WFSG Parties such other information as they may reasonably request; provided that, with respect to any such data, records and information that is in electronic form, the APL Parties shall use commercially reasonable efforts to make such data, records and information (including the Records) available to the WFSG Parties in formats that are acceptable to them; and, provided, further, that the WFSG Parties shall not contact clients, customers, suppliers or lenders of the APL Parties or their Affiliates without the prior consent of the APL Parties (which consent shall not be unreasonably withheld or delayed). The WFSG Parties shall, and shall cause their representatives to, comply fully with all rules, regulations, policies and instructions reasonably issued by the APL Parties or their Affiliates and provided to the WFSG Parties regarding such Person’s actions while upon, entering or leaving any property. The WFSG Parties shall not, and shall cause their representatives not to, unreasonably interfere with the day-to-day operations of the businesses of the APL Parties and their Affiliates in conducting any due diligence activities. The APL Parties shall have the right to have a representative present at all times of any inspections, interviews, and examinations conducted at or on the offices or other facilities or properties of the APL Parties or their Affiliates. (b) The WFSG Parties shall hold in confidence all such information on the terms and subject to the conditions contained in the Confidentiality Agreement, dated October 23, 2008, by and among Atlas Holdings of Delaware LP, APL and Xxxxxxxx Partners GP LLC, a Delaware limited liability company, as amended (the “Confidentiality Agreement”).

Access to Records; Confidentiality. (a) Between the date hereof and the Closing, the APL Parent Parties shall, and shall cause their Affiliates to, give the WFSG KM Parties and their its authorized representatives reasonable access, during regular business hours and upon reasonable advance notice, to the financial, title, tax, corporate and legal materials and operating data, records and information relating to the Subject Entities, the Appalachian Assets, the Appalachian Business and the businesses and operations of the APL Parties and their Affiliates related theretoEagle Ford Business, including the work papers used or created by the APL Parent Parties or their representatives in connection with the preparation of the Audited Statement of Assets and Liabilitiesrepresentatives, and shall furnish to the WFSG KM Parties such other information as they it may reasonably request; provided that, with respect to any such data, records and information that is in electronic form, the APL Parent Parties shall use commercially reasonable efforts to make such data, records and information (including the Records) available to the WFSG KM Parties in formats that are acceptable to them; and, provided, further, that the WFSG KM Parties shall not (a) contact clients, customers, suppliers or lenders of the APL Parent Parties with respect to the transactions contemplated hereby or their Affiliates (b) perform invasive or subsurface investigations of the real property comprising the Eagle Ford Assets, without the prior written consent of the APL Parent Parties (which consent shall not be unreasonably withheld or delayed). The WFSG the KM Parties shall, and shall cause their its representatives to, comply fully with all rules, regulations, policies and instructions reasonably issued by the APL Parent Parties or their Affiliates and provided to the WFSG KM Parties regarding such Person’s actions while upon, entering or leaving any property. The WFSG the KM Parties shall not, and shall cause their its representatives not to, unreasonably interfere with the day-to-day operations of the businesses of the APL Parent Parties and their Affiliates in conducting any due diligence activities. The APL Parent Parties shall have the right to have a representative present at all times of any inspections, interviews, and examinations conducted at or on the offices or other facilities or properties of the APL Parties or their AffiliatesParent Parties. (b) the KM Parties hereby agree to defend, indemnify and hold harmless each of the Parent Indemnified Parties from and against any and all Liabilities attributable to personal injury, death or physical property damage, or violations of Parent’s or its Affiliate’s rules, regulations or operating policies of which the KM Parties or the KM Parties’ representatives and advisors had been informed, in each case arising out of, resulting from or relating to any field visit, environmental property assessment, or other due diligence activity conducted by the KM Parties or any KM Parties’ representative or advisor with respect to the Eagle Ford Assets or Eagle Ford Business prior to Closing, EVEN IF SUCH LIABILITIES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE SOLE, ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY A MEMBER OF THE PARENT INDEMNIFIED PARTIES, EXCEPTING ONLY LIABILITIES ACTUALLY RESULTING ON THE ACCOUNT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A MEMBER OF THE PARENT INDEMNIFIED PARTIES. (c) The WFSG KM Parties shall hold in confidence all such information on the terms and subject to the conditions contained in the Confidentiality Agreement, dated October 235, 20082010, by and among Atlas Holdings of Delaware LPParent, APL HS and Xxxxxxxx Partners GP LLC, a Delaware limited liability company, as amended (the “Confidentiality Agreement”)JVP Parent.

Access to Records; Confidentiality. (a) Between Buyer shall preserve for a period of no less than seven (7) years after the date hereof Closing Date and the Closing, the APL Parties shall, make available (for review and shall cause their Affiliates to, give the WFSG Parties copying) to Seller and their its authorized representatives following the Closing upon reasonable access, notice during regular normal business hours and upon reasonable advance notice, to the financial, title, tax, corporate and legal materials and operating data, records and information relating to the Subject Entities, the Appalachian Assets, the Appalachian Business and the businesses and operations of the APL Parties and their Affiliates related thereto, including the work papers used or created transferred by the APL Parties or their representatives in connection with the preparation of the Audited Statement of Assets and Liabilities, and shall furnish to the WFSG Parties such other information as they may reasonably request; provided thatSeller and, with respect to records that may be relevant to any actual Tax audits or proceedings, such additional period as is reasonably required by Seller; provided, however, that Buyer shall notify Seller prior to destroying any such data, records and information that is in electronic form, the APL Parties shall use commercially reasonable efforts to make record during such data, records and information (including the Records) available to the WFSG Parties in formats that are acceptable to them; period and, provided, further, that Buyer shall maintain in the WFSG Parties CHAMP system any records transferred by Seller as part of such system, and Buyer shall not contact clientsrun reports with respect to such records upon Seller's reasonable request, customersconsistent with past practice. In the event that, suppliers or lenders during such seven (7) year period, Buyer intends to cease use of the APL Parties CHAMP system for its own purposes or transfer the CHAMP system to a third party (other than in a sale of the Business in which the transferee assumes all obligations of Buyer relating to the CHAMP system and the applicable records), Buyer shall so notify Seller and, upon Seller's request, shall (i) provide to Seller a copy of the then-current source code for the CHAMP software; and (ii) grant to Seller a perpetual, non-exclusive, royalty-free, fully-paid, irrevocable license to use and make derivative works of such software. Buyer shall permit, to the extent permitted by law, Seller, and any of its agents, representatives, advisors and consultants, to have reasonable access to the employees of the Business for information relating to periods up to and including the Closing which is reasonably requested by Seller, subject to the same types of conditions and limitations as set forth in Section 6.2(a). (b) Any information regarding the Business or Assets heretofore or hereafter obtained from Seller or its Affiliates by the Acquirors or their Affiliates without or representatives shall be subject to the prior consent terms of the APL Parties (which consent Confidentiality Agreement and such information shall not be unreasonably withheld or delayed)held in confidence by the Acquirors and their Affiliates and representatives in accordance with the terms of the Confidentiality Agreement. The WFSG Parties terms of the Confidentiality Agreement are hereby incorporated by reference and shall continue in full force and effect until the Closing, at which time such Confidentiality Agreement shall terminate. If this Agreement is, for any reason, terminated prior to the Closing, the Confidentiality Agreement shall continue in full force and effect as provided in Section 8.2 hereof in accordance with its terms. (c) From and after the Closing, the Acquirors shall, and shall cause their representatives to, comply fully with all rules, regulations, policies and instructions reasonably issued by the APL Parties or each of their Affiliates and provided to the WFSG Parties regarding such Person’s actions while upon, entering or leaving any property. The WFSG Parties shall not, and shall cause their representatives not Business to, unreasonably interfere with keep confidential and not use for any purpose all nonpublic information regarding Seller or its Affiliates (other than the day-to-day operations Transferred Subsidiaries and the Business) of which the businesses of Acquirors, their Subsidiaries, the APL Parties and their Affiliates in conducting any due diligence activities. The APL Parties shall have Business or the right to have a representative present at all times of any inspections, interviews, and examinations conducted at or on the offices or other facilities or properties of the APL Parties or their AffiliatesAffected Employees may be aware. (b) The WFSG Parties shall hold in confidence all such information on the terms and subject to the conditions contained in the Confidentiality Agreement, dated October 23, 2008, by and among Atlas Holdings of Delaware LP, APL and Xxxxxxxx Partners GP LLC, a Delaware limited liability company, as amended (the “Confidentiality Agreement”).

Access to Records; Confidentiality. (a) Between Prior to the date hereof Closing Date, Buyer shall be entitled, through its employees and the Closing, the APL Parties shall, and shall cause their Affiliates to, give the WFSG Parties and their authorized representatives reasonable access, during regular business hours and upon reasonable advance noticerepresentatives, to make such investigation of the financialassets, titleproperties, tax, corporate business and legal materials operations of each Bank and operating datasuch examination of the books, records and information relating financial condition of each Bank as Buyer may reasonably request. Any such investigation and examination shall be conducted at reasonable times after providing reasonable prior notice and under reasonable circumstances and Seller shall cause each Bank to cooperate reasonably therewith. In order that Buyer may have the Subject Entitiesopportunity to make such business, the Appalachian Assetsaccounting and legal review, the Appalachian Business and the businesses and operations examination or investigation as it reasonably requests of the APL Parties business and their Affiliates related theretoaffairs of each Bank, including Seller shall cause each Bank to furnish the work papers used representatives of the investigating or created by the APL Parties or their examining party, during such period, with all such information and copies of such documents as such representatives may reasonably request, shall make available its officers and employees as such representatives may reasonably request, and Seller shall cause each Bank to cause its officers and employees to, and use reasonable efforts to cause its consultants, agents, accountants and attorneys to, cooperate reasonably with such representatives in connection with such review and examination. (b) Any exchange of Evaluation Material (as such term is defined in the preparation Non-Disclosure Agreement) pursuant to this Section 7.04 shall be subject to the terms of the Audited Statement Non-Disclosure Agreement, which are hereby incorporated herein by reference and will continue in full force and effect until the Closing Date; provided, that the terms of Assets the Non-Disclosure Agreement are expanded to apply mutatis mutandi to all Evaluation Material of Seller or each Bank or any of their Affiliates provided to Buyer or any of its employees or Representatives and Liabilitiesto all Evaluation Material of Buyer or any of its Affiliates provided to Seller or any of its employees or Representatives, as the case may be, such that the information obtained by any party hereto, or its employees or Representatives, during any investigation conducted pursuant to Section 7.04(a), or in connection with the negotiation and shall furnish to execution of this Agreement or the WFSG Parties such other information as they may reasonably requestconsummation of the Transactions, or otherwise, will be governed by the terms of the Non-Disclosure Agreement; provided that, with respect to any such data, records and information that is in electronic form, the APL Parties shall use commercially reasonable efforts to make such data, records and information (including the Records) available to the WFSG Parties in formats that are acceptable to them; and, provided, further, that the WFSG Parties shall not contact clients, customers, suppliers or lenders of the APL Parties or their Affiliates without the prior consent of the APL Parties (which consent shall not be unreasonably withheld or delayed). The WFSG Parties shall, and shall cause their representatives to, comply fully with all rules, regulations, policies and instructions reasonably issued by the APL Parties or their Affiliates and provided to the WFSG Parties regarding such Person’s actions while upon, entering or leaving any property. The WFSG Parties shall not, and shall cause their representatives not to, unreasonably interfere with the day-to-day operations of the businesses of the APL Parties and their Affiliates in conducting any due diligence activities. The APL Parties Seller shall have the right to have rely on and enforce as a representative present at third party beneficiary any and all times rights of any inspectionsXxxxx Financial, interviewsInc. under the Non-Disclosure Agreement. Upon Closing, and examinations conducted at or on the offices or other facilities or properties obligations of the APL Parties or their Affiliates. (b) The WFSG Parties shall hold in confidence all such information on the terms and subject parties to the conditions contained in Non-Disclosure Agreement under such agreement and the Confidentiality Agreement, dated October 23, 2008, by obligations of Buyer and among Atlas Holdings Seller under this Section 7.04(b) will terminate and be of Delaware LP, APL and Xxxxxxxx Partners GP LLC, a Delaware limited liability company, as amended (the “Confidentiality Agreement”)no further force or effect.

Access to Records; Confidentiality. (a) Between Prior to the date hereof Closing Date, each of Parent and Merger Sub shall be entitled, through their respective employees and representatives, to make such investigation of the assets, properties, business and operations of the Company and the ClosingCompany Subsidiaries and such examination of the books, records and financial condition of the APL Parties shallCompany and Company Subsidiaries as the Parent and Merger Sub may request. Any such investigation and examination shall be conducted at reasonable times after providing reasonable prior notice and under reasonable circumstances and the Company shall cooperate, and shall cause their Affiliates the Company Subsidiaries to cooperate, reasonably therewith. In order that the Parent and Merger Sub may have the opportunity to make such business, accounting and legal review, examination or investigation as it reasonably requests of the business and affairs of the Company and the Company Subsidiaries, the Company and the Company Subsidiaries shall furnish the representatives of the investigating or examining party, during such period, with all such information and copies of such documents as such representatives may reasonably request, shall make available its officers and employees (and those of its Subsidiaries) as such representatives may reasonably request, and shall cause its officers and employees (and those of its Subsidiaries) to, give the WFSG Parties and their authorized representatives use reasonable accessefforts to cause its consultants, during regular business hours agents, accountants and upon reasonable advance noticeattorneys (and those of its Subsidiaries) to, to the financial, title, tax, corporate and legal materials and operating data, records and information relating to the Subject Entities, the Appalachian Assets, the Appalachian Business and the businesses and operations of the APL Parties and their Affiliates related thereto, including the work papers used or created by the APL Parties or their cooperate fully with such representatives in connection with the preparation of the Audited Statement of Assets such review and Liabilities, and shall furnish examination. Notwithstanding anything to the WFSG Parties such other contrary in this Section 5.5, neither party shall be required to disclose any classified information as they may reasonably request; provided that, with respect to any such data, records and information that is in electronic form, the APL Parties shall use commercially reasonable efforts to make such data, records and information (including the Records) available to the WFSG Parties in formats that are acceptable to them; and, provided, further, that the WFSG Parties shall not contact clients, customers, suppliers or lenders violation of the APL Parties or their Affiliates without the prior consent of the APL Parties (which consent shall not be unreasonably withheld or delayed). The WFSG Parties shall, and shall cause their representatives to, comply fully with all rules, regulations, policies and instructions reasonably issued by the APL Parties or their Affiliates and provided to the WFSG Parties regarding such Person’s actions while upon, entering or leaving any property. The WFSG Parties shall not, and shall cause their representatives not to, unreasonably interfere with the day-to-day operations of the businesses of the APL Parties and their Affiliates in conducting any due diligence activities. The APL Parties shall have the right to have a representative present at all times of any inspections, interviews, and examinations conducted at or on the offices or other facilities or properties of the APL Parties or their AffiliatesApplicable Law. (b) The WFSG Parties Unless (i) otherwise expressly provided in this Agreement, (ii) required by Applicable Law, (iii) necessary to secure any required consents as to which the other party has been advised, or (iv) consented to in writing by Parent and the Company, this Agreement and any information or documents furnished in connection herewith shall be kept strictly confidential by the Company and the Company Subsidiaries, Parent and the Parent Subsidiaries, and their respective officers, directors, employees and agents. Prior to any disclosure pursuant to the preceding sentence, the party intending to make such disclosure shall consult with the other party to the extent practicable regarding the nature and extent of the disclosure. Subject to the preceding sentence, nothing contained herein shall preclude disclosures to the extent necessary to comply with accounting, SEC and other disclosure obligations imposed by Applicable Law. In the event the Merger is not consummated, Parent and the Company shall return to the other all documents furnished by the other and all copies thereof made by such party and will hold in absolute confidence all information obtained from the other party except to the extent (i) such party is required to disclose such information by Law or such disclosure is necessary in connection with the pursuit or defense of a claim, (ii) such information was known by such party prior to such disclosure or was thereafter developed or obtained by such party independent of such disclosure, (iii) such party received such information on a non-confidential basis from a source, other than the terms and subject other party, which is not known by such party to be bound by a confidentiality obligation with respect thereto or (iv) such information becomes generally available to the conditions contained public or is otherwise no longer confidential. Prior to any disclosure of information pursuant to the exception in clause (i) of the Confidentiality Agreementpreceding sentence, dated October 23, 2008, by and among Atlas Holdings of Delaware LP, APL and Xxxxxxxx Partners GP LLC, the party intending to disclose the same shall so notify the party which provided the same to the extent practicable in order that such party may seek a Delaware limited liability company, as amended (the “Confidentiality Agreement”)protective order or other appropriate remedy should it choose to do so.