Common use of Agreement to Cooperate; Regulatory Approval Clause in Contracts

Agreement to Cooperate; Regulatory Approval. (a) Subject to the terms and conditions of this Agreement and applicable Law, each Party shall use its commercially reasonable efforts to take, or cause to be taken, all action and do, or cause to be done, all things necessary, proper or advisable to obtain as promptly as reasonably practicable all necessary or appropriate waivers, consents, approvals or authorizations of Governmental Authorities and to satisfy all other conditions required in order to consummate the transactions contemplated by this Agreement (and, in such case, to proceed with the consummation of the transactions contemplated by this Agreement as expeditiously as possible). (b) In addition to and without limitation of the foregoing, Purchaser, on the one hand, and each Seller, on the other hand, shall file as soon as practicable, but in no event later than forty-five (45) days following the Execution Date, any application, form or report required by any Governmental Authority to be filed prior to Closing relating to antitrust, competition, trade or energy regulation matters. Each of the Parties shall request expedited treatment of any such filings and shall (i) respond as promptly as practicable to any inquiries or requests received from any Governmental Authority for additional information or documentation, (ii) not enter into any agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement, except with the prior consent of the other Party (which shall not be unreasonably withheld, delayed or conditioned), (iii) subject to Section 6.06(c), provide the other Party with a copy of any proposed filing, or amendment or supplement thereto, with any Governmental Authority concerning this Agreement or the transactions contemplated hereby for their review, except any such filing, amendment or supplement that will not become a matter of public record, (iv) provide status updates to the other Party in respect of any filings, investigation or inquiry concerning this Agreement or the transactions contemplated hereby, as may be required by the other Party from time to time, except in respect of any such filing, investigation or inquiry that is not a matter of public record, and (v) at such Party’s sole discretion, consult with the other Party in advance of or following its participation in any in-person, substantive meeting with any Governmental Authority in respect of any filings, investigation or inquiry concerning this Agreement or the transactions contemplated hereby, and it being understood that any such consultation with the other Party shall not constitute, or be construed as constituting, the undertaking of an obligation to solicit or obtain the consent or approval of the other Party. (c) Prior to filing any application, form or report required by FERC with respect to the transactions contemplated by this Agreement, Purchaser and Sellers, as the case may be, shall provide each other a copy of such proposed filing for their review (except any such proposed filing that will not become a matter of public record), provided that the Parties shall cooperate in the preparation of, and have the joint right to approve, any such application, form or report that must be submitted jointly by Sellers and Purchaser prior to filing. (d) The application, form or report required by CPUC to be filed with respect to the transactions contemplated by this Agreement shall request CPUC approval of (i) the purchase of the applicable Interests by Purchaser pursuant to the terms and conditions of this Agreement, (ii) the liquidation of the Companies, and the transfer to Purchaser (including transfer by merger) of all of the assets and liabilities of the Companies, immediately after the Closing, and (iii) the placement of the assets of the Companies into Purchaser’s utility rate base and interim rate relief for Purchaser to recover the revenue requirements associated with such assets, either through a Purchase Capacity Cost Adjustment rider or through an alternative recovery mechanism, until such assets are actually reflected in the setting of Purchaser’s base rates. Sellers shall provide, and shall cause the Companies to provide, such assistance to Purchaser as Purchaser may reasonably request in connection with obtaining such CPUC approvals. (e) The application, form or report required by FERC to be filed with respect to the transactions contemplated by this Agreement shall state that the consummation of the transactions contemplated by this Agreement will have no effect (or a neutral effect) on market concentration within all relevant markets and that no further action, condition or obligation is required to satisfy the requirements under Section 203 of the Federal Power Act and applicable FERC regulations for approval for the consummation of the transactions contemplated by the Agreement. (f) Purchaser shall bear the filing fees associated with any filings made pursuant to this Section 6.06.

Agreement to Cooperate; Regulatory Approval. (a) Subject to the terms and conditions of this Agreement Agreement, including Section 6.06(f), and applicable Law, each Party shall use its commercially reasonable commercial efforts to take, or cause to be taken, all action and do, or cause to be done, all things necessary, proper or advisable to obtain as promptly as reasonably practicable all necessary or appropriate waivers, consents, approvals or authorizations of Governmental Authorities, including without limitation with respect to the FERC and HSR, including a request by Purchaser for an early termination of the waiting period under the HSR, and including obtaining any waivers or taking any other actions with Governmental Authorities that are necessary to permanently release and assign to one or more of the Companies (as designated by Purchaser) the Assigned Contracts, and to satisfy all other conditions required in order to consummate the transactions contemplated by this Agreement (and, in such case, to proceed with the consummation of the transactions contemplated by this Agreement as expeditiously as possible). (b) In addition to and without limitation of the foregoing, Purchaser, on the one hand, and each Seller, on the other hand, shall (i) file as soon as practicable, but in no event later than forty-five (45) 10 days following the Execution Date, any application, form or report required by FERC (which application, form or report shall be drafted by Purchaser, and Sellers shall have at least 2 Business Days to review and comment on such draft prior to its filing), and (ii) file as soon as practicable, but in no event later than 10 days following the Execution Date, any form or report required by any Governmental Authority to be filed prior to Closing relating to antitrust, competition, trade or energy regulation matters. Each of the Parties shall request expedited treatment of any such filings filings. Purchaser and each Seller shall (i) respond as promptly as practicable to any inquiries or requests received from any Governmental Authority for additional information or documentation, documentation and (ii) not enter into any agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement, except with the prior consent of the other Party (which shall not be unreasonably withheld, delayed or conditioned), . Each Party shall (iiii) subject to Section 6.06(c), provide promptly notify the other Party with a copy of any proposed filing, or amendment or supplement thereto, with material written communication to that Party from any Governmental Authority concerning this Agreement or the transactions contemplated hereby for their reviewand, except any such filingsubject to applicable Law and execution of an appropriate joint defense arrangement, amendment or supplement that will not become a matter of public record, (iv) provide status updates to permit the other Party in respect of any filings, investigation or inquiry concerning this Agreement or the transactions contemplated hereby, as may be required by the other Party from time its counsel to time, except in respect of any such filing, investigation or inquiry that is not a matter of public record, and (v) at such Party’s sole discretion, consult with the other Party review in advance any proposed written communication to any of or following its participation the foregoing, (ii) not agree to participate in any in-person, substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning this Agreement or the transactions contemplated hereby, and hereby unless it being understood that any such consultation consults with the other Party shall not constitutein advance and, or be construed as constitutingto the extent permitted by such Governmental Authority, gives the undertaking other Party the opportunity to attend and participate thereat, and (iii) subject to applicable Law and execution of an obligation to solicit or obtain the consent or approval of appropriate joint defense arrangement, furnish the other PartyParty with copies of all material correspondence, filings, and communications (and memoranda setting forth the substance thereof) between them and their Affiliates and their respective Representatives on the one hand, and any Governmental Authority or members of their respective staffs on the other hand, with respect to this Agreement and the transactions contemplated hereby. (c) Prior to filing any application, form or report required by FERC with respect to the transactions contemplated by this Agreement, prior to the Closing, Purchaser and Sellers, as the case may be, shall provide each other a copy of such proposed filing for their review (except any such proposed filing that will not become a matter of public record), review; provided that the Parties shall cooperate in the preparation of, and have the joint right to approve, approve any such application, form or report that must be submitted jointly by Sellers and Purchaser prior to filing. (d) The applicationExcept as set forth in Section 6.06(d) of the Disclosure Letter, form during the Interim Period, except as may be agreed in writing by the other Parties or report required by CPUC as may be expressly permitted pursuant to be filed this Agreement, Purchaser shall not and shall cause LS Power Equity Partners III LP, and Sellers shall not and shall cause their Subsidiaries, to not, and to not permit any of their respective Subsidiaries to, acquire, develop or construct any electric generation or transmission facility, enter into any Contract with respect to any electric generation or transmission facility, or otherwise obtain control over any electric generation or transmission facility, or make any regulatory filing seeking to do any of the foregoing, in each case in the applicable region in which the Facilities are located, and in each case which could reasonably be expected to impact the ability of the Parties to secure all required government approvals to consummate the transactions contemplated by this Agreement shall request CPUC approval of (i) hereunder, or take any action with any Governmental Authority relating to the purchase foregoing, or agree, in writing or otherwise, to do any of the applicable Interests by Purchaser pursuant foregoing, in each case which could reasonably be expected to the terms and conditions of this Agreement, (ii) the liquidation of the Companies, and the transfer to Purchaser (including transfer by merger) of all of the assets and liabilities of the Companies, immediately after the Closing, and (iii) the placement of the assets of the Companies into Purchaser’s utility rate base and interim rate relief for Purchaser to recover the revenue requirements associated with such assets, either through a Purchase Capacity Cost Adjustment rider delay or through an alternative recovery mechanism, until such assets are actually reflected in the setting of Purchaser’s base rates. Sellers shall provide, and shall cause the Companies to provide, such assistance to Purchaser as Purchaser may reasonably request in connection with obtaining such CPUC approvals. (e) The application, form or report required by FERC to be filed with respect to the transactions contemplated by this Agreement shall state that prevent the consummation of the transactions contemplated by this Agreement will have no effect (hereby or a neutral effect) on market concentration within all relevant markets and that no further action, condition or obligation is required result in the failure to satisfy the requirements under Section 203 of the Federal Power Act and applicable FERC regulations for approval for the any condition to consummation of the transactions contemplated by the Agreementhereby. (fe) Purchaser shall bear 100% of all HSR filing fees, costs and expenses. Purchaser shall bear 50% of, and Sellers shall bear 50% of the costs and expenses in connection with obtaining all governmental approvals necessary to consummate the transactions contemplated by this Agreement, including filing fees associated with any filings made pursuant to this Section 6.066.06 (excluding the HSR fees, costs and expenses). (f) Notwithstanding the foregoing, nothing in this Section 6.06 shall require, or be construed to require, either Party or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of such Party or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which could reasonably be expected to materially and adversely impact the economic or business benefits to Purchaser of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of any of the material terms and conditions of this Agreement. (g) Promptly and in any case within two Business Days following the Closing, Purchaser and Sellers shall take such actions as are necessary to remove each Facility from the generator owner and generator operator registrations of Sellers or their Affiliates and register each Company or other appropriate entity designated by Purchaser as generator owner and generator operator, as applicable.

Agreement to Cooperate; Regulatory Approval. (a) Subject to the terms and conditions of this Agreement and applicable Law, each Party shall will use its diligent and commercially reasonable efforts to (i) take, or cause to be taken, all action appropriate action, and do, or cause to be done, all things necessary, proper or advisable under applicable Laws or otherwise to obtain as promptly as reasonably practicable all necessary or appropriate waivers, consents, approvals or authorizations of Governmental Authorities consummate and to satisfy all other conditions required in order to consummate make effective the transactions contemplated by this Agreement (and, in such case, to proceed with the consummation of the transactions contemplated by this Agreement as expeditiously as possible), (ii) obtain all authorizations, consents, orders and approvals of, and give all notices to and make all filings with, all Governmental Authorities and other third parties that may be or become necessary for the performance of its obligations under this Agreement and the consummation of the transactions contemplated by this Agreement, or that may be or become necessary pursuant to any Permit or Contract to which the Company is bound or by which the Facility or any of the Company’s assets or properties are bound (including State Regulatory Approval, FERC Approval and any Seller Approvals), and (iii) satisfy all conditions to such Party’s obligations under this Agreement. (b) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, nothing in this Section 6.06 shall (i) require, or be deemed to require, Purchaser, Seller, the Company or any of their respective Affiliates to agree to (A) make payments, commence legal or regulatory proceedings or agree to modifications of the terms and conditions of any agreements with third parties or Permits, (B) consent to any action or omission by the other Party or its Affiliates, (C) amend or waive any provision of this Agreement, (D) any sale, divestiture, license or disposition of assets or businesses of the Company, (E) any prohibition of or limitation on the ownership or operation of any portion of its or of any of its Affiliates’ or the Company’s assets, (F) any limitation on Purchaser’s ability to acquire or hold or exercise full rights of ownership of the Interests or to acquire or hold or exercise full rights of ownership of the Company or its businesses or assets, (G) any other limitation on Purchaser’s or any of its Affiliates’ ability to effectively control their respective businesses and assets; or (H) any behavioral remedy of the Company or (ii) limit Purchaser’s rights hereunder to require that each State Regulatory Approval has terms and conditions acceptable to Purchaser in its sole and absolute discretion. (c) Each Party shall reasonably cooperate with the other Party in performing the obligations required by this Section 6.06. Notwithstanding anything to the contrary contained in this Section 6.06, if the Parties are in an adversarial relationship in litigation or arbitration, the furnishing of any documents or information in accordance herewith shall be solely subject to applicable rules relating to discovery and the remainder of this Section 6.06 shall not apply. Prior to filing any application, form or report required for FERC Approval, Purchaser and Seller, as the case may be, shall provide each other a copy of such proposed filing for their review, provided that the Parties shall cooperate in the preparation of, and have the joint right to approve, the application for FERC Approval and any other such application, form or report that must be submitted jointly by Seller and Purchaser prior to filing. (d) In addition to and without limitation of the foregoing, Purchaser, on the one hand, and each Seller, on the other hand, shall file (i) as soon as practicable, but in no event later than ninety (90) days following the Execution Date, a joint application for FERC Approval, and (ii) as soon as practicable, but in no event later than forty-five (45) days following the Execution Date, any other application, form or report required by any Governmental Authority to be filed prior to Closing relating Closing, except the State Regulatory Approval. With respect to antitrustFERC Approval and the Seller Approvals only, competition, trade or energy regulation matters. Each each of the Parties shall request expedited treatment of any such filings and shall (i1) respond as promptly as practicable to any inquiries or requests received from any Governmental Authority for additional information or documentation, (ii2) not enter into any agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement, except with the prior consent of the other Party (which shall not be unreasonably withheld, delayed or conditioned), (iii3) subject to Section 6.06(c), provide the other Party with a copy of any proposed filing, or amendment or supplement thereto, with any Governmental Authority concerning this Agreement or the transactions contemplated hereby for their review, except any such filing, amendment or supplement that will not become a matter of public record, (iv4) provide status updates to the other Party in respect of any filings, filings with or investigation or inquiry by any Governmental Authority concerning this Agreement or the transactions contemplated hereby, as may be required by the other Party from time to time, except in respect of any such filing, investigation or inquiry that is not a matter of public record, and (v5) at such Party’s sole discretion, consult with the other Party in advance of or following its participation in any in-person, substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning this Agreement or the transactions contemplated hereby, and it being understood that any such consultation with the other Party shall not constitute, or be construed as constituting, the undertaking of an obligation to solicit or obtain the consent or approval of the other Party. (c) Prior to filing any application, form or report required by FERC with respect to the transactions contemplated by this Agreement, Purchaser and Sellers, as the case may be, shall provide each other a copy of such proposed filing for their review (except any such proposed filing that will not become a matter of public record), provided that the Parties shall cooperate in the preparation of, and have the joint right to approve, any such application, form or report that must be submitted jointly by Sellers and Purchaser prior to filing. (d) The application, form or report required by CPUC to be filed with respect to the transactions contemplated by this Agreement shall request CPUC approval of (i) the purchase of the applicable Interests by Purchaser pursuant to the terms and conditions of this Agreement, (ii) the liquidation of the Companies, and the transfer to Purchaser (including transfer by merger) of all of the assets and liabilities of the Companies, immediately after the Closing, and (iii) the placement of the assets of the Companies into Purchaser’s utility rate base and interim rate relief for Purchaser to recover the revenue requirements associated with such assets, either through a Purchase Capacity Cost Adjustment rider or through an alternative recovery mechanism, until such assets are actually reflected in the setting of Purchaser’s base rates. Sellers shall provide, and shall cause the Companies to provide, such assistance to Purchaser as Purchaser may reasonably request in connection with obtaining such CPUC approvals. (e) The application, form or report required by application for FERC to be filed with respect to the transactions contemplated by this Agreement Approval shall state that the consummation of the transactions contemplated by this Agreement will have no effect (or a neutral effect) on market concentration within all relevant markets and that no further action, condition or obligation is required to satisfy the requirements under Section 203 of the Federal Power Act and applicable FERC regulations for approval for the consummation of the transactions contemplated by this Agreement; provided, however, that Purchaser and Seller may agree to include proposed conditions or restrictions in the Agreementjoint application for FERC Approval. (f) With respect to State Regulatory Approval, Purchaser will promptly (but in no event later than sixty (60) days following the Execution Date) submit an application or a petition to the CPUC requesting State Regulatory Approval and pay all costs associated with such filing and such proceedings. (g) Upon reasonable request by Seller, Purchaser shall keep Seller fully apprised of the status of the request for State Regulatory Approval. (h) If requested by Purchaser, Seller shall, at its own cost, reasonably cooperate and support Purchaser’s efforts to obtain State Regulatory Approval, including (i) assisting in the factual development of the filings (including Purchaser’s testimony and motions or responses thereto that Purchaser deems necessary); (ii) assisting in answering discovery conducted on Purchaser’s testimony; and (iii) providing supportive testimony, discovery and written comments from Seller; provided, however, that Seller, the Company and their Affiliates will not communicate with the CPUC staff regarding the Facility or the regulatory approval process without Purchaser’s express consent, which consent may be withheld for any reason; provided, further, that any such assistance by Seller shall not constitute, or be construed as constituting, the undertaking of an obligation to solicit or obtain the consent or approval of Seller with respect to the State Regulatory Approval. (i) In the event that the application for State Regulatory Approval is denied or approved with modifications that are unacceptable to Purchaser, Purchaser and Seller shall confer in good faith within thirty (30) days after such denial or approval to determine the feasibility of obtaining State Regulatory Approval. (j) Within sixty (60) days after the CPUC issues an order related to the request for State Regulatory Approval, Purchaser shall deliver written notice to Seller either (A) confirming that State Regulatory Approval has been received and that the condition in Section 7.02(f) has been satisfied or (B) stating that State Regulatory Approval has not been received with a detailed explanation supporting Purchaser’s position. (k) Purchaser on one hand and Seller on the other hand shall each bear fifty percent (50%) of the filing and other fees associated with any filings made pursuant to this Section 6.066.06 (other than filing and other fees associated with the State Regulatory Approval which shall be borne solely by Purchaser). (l) With regard to each impoundment at the Facility, including the evaporation pond, prior to the Closing Seller shall cause the Company to submit an Inventory and Preliminary Classification Report (the “IPCR”) to the Colorado Department of Public Health and Environment, Solid Waste Division for review and approval. The IPCR shall include a preliminary classification of each impoundment or indicate that the impoundment is exempt from Section 9 pursuant to Section 9.1.2 of the Colorado Solid Waste Regulation, 6 CCR 1007-2:1-9.