Common use of Excluded Items Clause in Contracts

Excluded Items. Notwithstanding anything in this Agreement to the contrary, Purchaser and Seller agree that each Acquired Companies Acquisition shall exclude those items listed on Schedule 7.12 to the applicable Acquired Companies Annex (in each case, the “Excluded Items”). Seller shall retain all benefits and liabilities with respect to the Excluded Items, and Seller shall, prior to the Closing Date, use Commercially Reasonable Efforts to cause the applicable Acquired Companies to distribute, transfer or assign, in each case effective as of or prior to the Closing, each Excluded Item to Seller or a non-Acquired Company Affiliate of Seller. Purchaser acknowledges that the inability of Seller to have any Excluded Item distributed, transferred or assigned, in each case effective as of or prior to the Closing, from any applicable Acquired Company for any reason shall not delay the applicable Closing, and any Excluded Item that Seller is unable to so distribute, transfer or assign by the applicable Closing shall be referred to as a “Non-Transferred Excluded Item.” After the applicable Closing Date with respect to each Non-Transferred Excluded Item, Purchaser shall, at Seller’s expense, use Commercially Reasonable Efforts to cause any Person under its control with knowledge of relevant facts pertaining to any Non-Transferred Excluded Item to provide assistance to Seller as reasonably requested by Seller to cause the transfer of each Non-Transferred Excluded Item following the applicable Closing Date to Seller or a non-Acquired Company Affiliate of Seller and, pending such transfer, to optimize the value of each Non-Transferred Excluded Item. If any payment is received by an applicable Acquired Company, or any other value is received by an applicable Acquired Company as a result of its ownership of a Non-Transferred Excluded Item following the applicable Closing Date, then Purchaser will cause the applicable Acquired Company to pay over such payment or an equivalent amount equal to such value received to Seller or a non-Acquired Company Affiliate of Seller.

Excluded Items. Notwithstanding anything in this Agreement to the contrary, Purchaser and Seller agree that each Acquired Companies Acquisition transactions contemplated herein shall exclude those items listed on Schedule 7.12 to the applicable Acquired Companies Annex (in each case, the “Excluded Items”). Seller shall retain all benefits and liabilities with respect to the Excluded Items, and Seller shall, prior to the Closing Date, use Commercially Reasonable Efforts to cause the applicable Acquired Companies to distribute, transfer or assign, in each case effective as of or prior to the Closing, each Excluded Item to Seller or a non-Acquired Company Affiliate of Seller. Purchaser acknowledges that the inability of Seller to have any Excluded Item distributed, transferred or assigned, in each case effective as of or prior to the Closing, from any applicable Acquired Company for any reason shall not delay the applicable Closing, and any Excluded Item that Seller is unable to so distribute, transfer or assign by the applicable Closing shall be referred to as a “Non-Transferred Excluded Item.” After the applicable Closing Date with respect to each Non-Transferred Excluded Item, Purchaser shall, at Seller’s expense, use Commercially Reasonable Efforts to cause any Person under its control with knowledge of relevant facts pertaining to any Non-Transferred Excluded Item to provide assistance to Seller as reasonably requested by Seller to cause the transfer of each Non-Transferred Excluded Item following the applicable Closing Date to Seller or a non-Acquired Company Affiliate of Seller and, pending such transfer, to optimize the value of each Non-Transferred Excluded Item. If any payment is received by an applicable Acquired Company, or any other value is received by an applicable Acquired Company as a result of its ownership of a Non-Transferred Excluded Item following the applicable Closing Date, then Purchaser will cause the applicable Acquired Company to pay over such payment or an equivalent amount equal to such value received to Seller or a non-Acquired Company Affiliate of Seller.

Excluded Items. Notwithstanding anything in this Agreement (a) All references herein to the contraryCompany’s assets, Purchaser properties (including, without limitation, its Oil and Seller agree that each Acquired Companies Acquisition shall exclude those items listed on Schedule 7.12 Gas Properties) and liabilities do not include or refer to any of the Excluded Items. (b) All (i) the Company’s insurance claims with respect to events affecting the Company or the Oil and Gas Properties which are made prior to the applicable Acquired Companies Annex Effective Date, (in each caseii) claims for severance tax refunds relating to production from the Oil and Gas Properties prior to the Effective Date and (iii) claims for sales tax refunds relating to purchases prior to the Effective Date (collectively, the “Additional Excluded Items”)) shall be excluded from the sale of the Shares to Buyer. Seller shall retain all benefits All references herein to the Company’s assets, properties (including, without limitation, its Oil and Gas Properties) and liabilities with respect do not include or refer to the Additional Excluded Items. Any Additional Excluded Items received by the Company between the Effective Date and the Closing Date shall be distributed by the Company to its shareholders or otherwise transferred to the Sellers or their nominee. In the event any Additional Excluded Items are received by the Company or Buyer following the Closing Date, Buyer shall or shall cause the Company within ten (10) business days of receipt by the Company or Buyer of such Additional Excluded Items to pay such Additional Excluded Items to Sellers or their nominees in accordance with instructions from the Sellers’ Representative. Buyer shall cooperate with Sellers in efforts to collect the Additional Excluded Items, and Seller shall, prior Buyer shall provide the Sellers’ Representative or its designees with full access to the Closing Datepersonnel, use Commercially Reasonable Efforts books and records of Buyer during normal business hours upon reasonable request of Sellers to cause the applicable Acquired Companies to distribute, transfer or assign, in each case effective as of or prior to the Closing, each Excluded Item to Seller or a non-Acquired Company Affiliate of Seller. Purchaser acknowledges that the inability of Seller to have any Excluded Item distributed, transferred or assigned, in each case effective as of or prior to the Closing, from any applicable Acquired Company audit such books and records for any reason shall not delay the applicable Closing, and any Excluded Item that Seller is unable to so distribute, transfer or assign by the applicable Closing shall be referred to as a “Non-Transferred Excluded Itemcompliance with this Section 3.5(b).” After the applicable Closing Date with respect to each Non-Transferred Excluded Item, Purchaser shall, at Seller’s expense, use Commercially Reasonable Efforts to cause any Person under its control with knowledge of relevant facts pertaining to any Non-Transferred Excluded Item to provide assistance to Seller as reasonably requested by Seller to cause the transfer of each Non-Transferred Excluded Item following the applicable Closing Date to Seller or a non-Acquired Company Affiliate of Seller and, pending such transfer, to optimize the value of each Non-Transferred Excluded Item. If any payment is received by an applicable Acquired Company, or any other value is received by an applicable Acquired Company as a result of its ownership of a Non-Transferred Excluded Item following the applicable Closing Date, then Purchaser will cause the applicable Acquired Company to pay over such payment or an equivalent amount equal to such value received to Seller or a non-Acquired Company Affiliate of Seller.

Excluded Items. Notwithstanding anything in this Agreement to the contrary, Purchaser Dynegy and Seller the Contributors agree that each Acquired Companies Acquisition the Contribution shall exclude those items listed on Schedule 7.12 to in Section 7.15 of the applicable Acquired Companies Annex LS Disclosure Letter (in each case, the “Excluded Items”). Seller , the Contributors shall retain all benefits and liabilities with respect to the Excluded Items, and Seller the Contributors shall, prior to the Closing Date, use Commercially Reasonable Efforts commercially reasonable efforts to cause the applicable Acquired Companies Contributed Entities to distribute, transfer or assign, in each case effective as of or prior to the Closing, assign each Excluded Item to Seller or a non-Acquired Company Affiliate of Sellerthe Contributors. Purchaser Dynegy acknowledges that the inability of Seller the Contributors to have any Excluded Item distributed, transferred or assigned, in each case effective as of or prior to assigned from the Closing, from any applicable Acquired Company Contributed Entities for any reason shall not delay the applicable Closing, Closing and any Excluded Item that Seller is the Contributors are unable to so distribute, transfer or assign by the applicable Closing shall be referred to as a “Non-Transferred Excluded Item.” After the applicable Closing Date with respect to each Non-Transferred Excluded Item, Purchaser Newco shall permit the Contributors to exclusively direct and manage the Contributed Entities’ participation in all negotiations, arbitrations, litigation, claims, and/or bankruptcy or other proceedings involving such Non-Transferred Excluded Item, whether existing on the Closing Date or arising thereafter. Newco shall also permit the Contributors to settle or compromise on behalf of the Contributed Entities any Non-Transferred Excluded Item in the Contributors’ sole discretion, and shall promptly pay the Contributors any proceeds or recoveries received in connection with any Non-Transferred Excluded Item. Newco shall, at Seller’s the Contributors’ expense, use Commercially Reasonable Efforts to : (a) cause any Person under its control with knowledge of relevant facts pertaining to any Non-Transferred Excluded Item to provide assistance to Seller the Contributors as reasonably requested by Seller the Contributors; and (b) provide any relevant books, records, or other information of the Contributed Entities to cause the transfer of each Non-Transferred Excluded Item following Contributors and access to the applicable Closing Date to Seller or a non-Acquired Company Affiliate of Seller andContributed Entities, pending such transferas reasonably requested by the Contributors, to optimize the value of each in connection with any Non-Transferred Excluded Item. If any payment is received by an applicable Acquired Company, or any other value is received by an applicable Acquired Company as a result of its ownership of a Non-Transferred Excluded Item following the applicable Closing Date, then Purchaser will cause the applicable Acquired Company to pay over such payment or an equivalent amount equal to such value received to Seller or a non-Acquired Company Affiliate of Seller.

Excluded Items. Notwithstanding anything in this Agreement to the contrary, Purchaser Buyer and Seller agree that each Acquired Companies Acquisition the Purchased Assets shall exclude those items listed on Schedule 7.12 to the applicable Acquired Companies Annex 6.6 (in each case, the “Excluded Items”). , Seller shall retain all benefits and liabilities with respect to the Excluded Items, and Seller shall, prior to the Closing Date, use Commercially Reasonable Efforts commercially reasonable efforts to cause the applicable Acquired Project Companies to distribute, transfer or assign, in each case effective as of or prior to the Closing, assign each Excluded Item to Seller or a nonNon-Acquired Company Affiliate of SellerAffiliate. Purchaser Buyer acknowledges that the inability of Seller to have any Excluded Item distributed, transferred or assigned, in each case effective as of or prior to the Closing, assigned from any applicable Acquired Project Company for any reason shall not delay the applicable Closing, Closing and any Excluded Item that Seller is unable to so distribute, transfer or assign by the applicable Closing shall be referred to as a “Non-Transferred Excluded Item.” After the applicable Closing Date with respect to each Non-Transferred Excluded Item, Purchaser Buyer shall permit Seller to exclusively direct and manage each Project Company’s participation in all negotiations, arbitrations, litigation, claims, and/or bankruptcy or other proceedings involving such Non-Transferred Excluded Item, whether existing on the Closing Date or arising thereafter. Buyer shall also permit Seller to settle or compromise on behalf of any Project Company any Non-Transferred Excluded Item in Seller’s sole discretion, and shall promptly pay Seller any proceeds or recoveries received in connection with any Non-Transferred Excluded Item. Buyer shall, at Seller’s expense, : use Commercially Reasonable Efforts commercially reasonable efforts to (a) cause any Person under its control with knowledge of relevant facts pertaining to any Non-Transferred Excluded Item to provide assistance to Seller as reasonably requested by Seller to cause the transfer of each Non-Seller; and (b) provide any relevant books, records, or other information concerning any Non Transferred Excluded Item following the applicable Closing Date and access to Seller or a non-Acquired Company Affiliate of Seller andeach Project site where any Non Transferred Excluded Item is located, pending such transferas reasonably requested by Seller, to optimize the value of each in connection with any Non-Transferred Excluded Item. If any payment is received by an ; provided in each case that Buyer shall have no obligation to make available information or access without reasonable prior notice, during normal business hours and subject to compliance with normal security and safety rules applicable Acquired Company, or any other value is received by an applicable Acquired Company as a result of its ownership of a Non-Transferred Excluded Item following to the applicable Closing Date, then Purchaser will cause the applicable Acquired Company to pay over such payment or an equivalent amount equal to such value received to Seller or a non-Acquired Company Affiliate of SellerProject site.

Excluded Items. Notwithstanding anything in this Agreement to the contrary, Purchaser Buyer and Seller the Sellers agree that each Acquired Companies Acquisition the Business shall exclude those items listed on in Section 7.15 of the Sellers’ Disclosure Schedule 7.12 to the applicable Acquired Companies Annex (in each case, the “Excluded Items”). Seller , the Sellers shall retain all benefits and liabilities with respect to the Excluded Items, and Seller the Sellers shall, prior to the Closing Date, use Commercially Reasonable Efforts commercially reasonable efforts to cause the applicable Acquired Companies Company to distribute, transfer or assign, in each case effective as of or prior to the Closing, assign each Excluded Item to Seller or a non-Acquired Company Affiliate of Sellerthe Sellers. Purchaser Buyer acknowledges that the inability of Seller the Sellers to have any Excluded Item distributed, transferred or assignedassigned from the Company or the Business, in each case effective as of or prior to the Closingapplicable, from any applicable Acquired Company for any reason shall not delay the applicable Closing, Closing and any Excluded Item that Seller is the Sellers are unable to so distribute, transfer or assign by the applicable Closing shall be referred to as a “Non-Transferred Excluded Item.” After the applicable Closing Date with respect to each Non-Transferred Excluded Item, Purchaser Buyer shall permit the Sellers to exclusively direct and manage the Company’s or the Business’, as applicable, participation in all negotiations, arbitrations, litigation, claims, and/or bankruptcy or other proceedings involving such Non-Transferred Excluded Item, whether existing on the Closing Date or arising thereafter. Buyer shall also permit the Sellers to settle or compromise on behalf of the Company and the Business, as applicable, any Non-Transferred Excluded Item in Sellers’ sole discretion, and shall promptly pay the Sellers any proceeds or recoveries received in connection with any Non-Transferred Excluded Item. Buyer shall, at Seller’s the Sellers’ expense, use Commercially Reasonable Efforts to : (a) cause any Person under its control with knowledge of relevant facts pertaining to any Non-Transferred Excluded Item to provide assistance to Seller the Sellers as reasonably requested by Seller the Sellers; and (b) provide any relevant books, records, or other information of the Company or the Business to cause the transfer of each Non-Transferred Excluded Item following Sellers and access to the applicable Closing Date to Seller or a non-Acquired Company Affiliate of Seller andBusiness, pending such transferas reasonably requested by the Sellers, to optimize the value of each in connection with any Non-Transferred Excluded Item. If any payment is received by an applicable Acquired Company, or any other value is received by an applicable Acquired Company as a result of its ownership of a Non-Transferred Excluded Item following the applicable Closing Date, then Purchaser will cause the applicable Acquired Company to pay over such payment or an equivalent amount equal to such value received to Seller or a non-Acquired Company Affiliate of Seller.

Excluded Items. Notwithstanding anything in this Agreement to the contrary, Purchaser Buyer and Seller agree that each Acquired Companies Acquisition the Purchased Assets shall exclude those items listed on Schedule 7.12 to the applicable Acquired Companies Annex 6.7 (in each case, the “Excluded Items”). Seller shall retain all benefits benefits, liabilities and liabilities obligations with respect to the Excluded Items, and Seller shall, at Seller’s sole cost and expense, prior to the Closing Date, use Commercially Reasonable Efforts to (i) other than in respect of any Excluded Item that will automatically terminate with effect at the Closing, cause the applicable Acquired Companies to distribute, transfer or assign, in each case effective as of or prior to the Closing, assign each Excluded Item to Seller or a nonNon-Acquired Company Affiliate, (ii) other than in respect of any Excluded Item that will automatically terminate with effect at the Closing, assume, or cause a Non-Acquired Company Affiliate to assume, all liabilities and obligations under, in respect of Selleror relating to, Excluded Items and (iii) cause the Acquired Companies to be fully released and discharged from all liabilities and obligations under or in respect of Excluded Items, in each case on terms satisfactory to Buyer acting reasonably. Purchaser Buyer acknowledges that the inability of Seller to have any Excluded Item distributed, transferred or assigned, in each case effective as of or prior to the Closing, assigned from any applicable Acquired Company for any reason shall not delay the applicable Closing, Closing and any Excluded Item that Seller is unable to so distribute, transfer or assign by the applicable Closing shall be referred to as a “Non-Transferred Excluded Item.” ”. After the applicable Closing Date with respect to each Non-Transferred Excluded Item, Purchaser (a) Buyer shall, at Seller’s sole cost and expense, permit Seller to exclusively direct and manage each Acquired Company’s participation in all negotiations, arbitrations, litigation, claims, bankruptcy or other proceedings solely to the extent involving such Non-Transferred Excluded Item, whether existing on the Closing Date or arising thereafter, provided that any such action that could adversely affect Buyer or any of its Affiliates (including the Acquired Companies) shall require Buyer’s prior consent, and (b) Seller shall pay, discharge and perform, or cause to be paid, discharged or performed, at Seller’s sole cost and expense, all liabilities and obligations under, in respect of or relating to Non-Transferred Excluded Items. Promptly upon request of Buyer, Seller shall reimburse Buyer and the Acquired Companies for all costs and expenses incurred or payable in connection with the foregoing. Buyer shall also permit Seller to settle on behalf of any Acquired Company any Non-Transferred Excluded Item in Seller’s sole discretion, and shall promptly pay Seller the after-Tax amount of any proceeds or recoveries received in connection with any Non-Transferred Excluded Item net of any costs and expenses of the Acquired Companies. Buyer shall, at Seller’s expense, use Commercially Reasonable Efforts to cause provide any Person under its control with knowledge of relevant facts pertaining to books, records or other information concerning any Non-Transferred Excluded Item and reasonable access to provide assistance each Project site in a manner not unreasonably disruptive to Seller as reasonably requested by Seller to cause the transfer of each its business where any Non-Transferred Excluded Item following the applicable Closing Date to Seller or a non-Acquired Company Affiliate of Seller andis located, pending such transferas reasonably requested by Seller, to optimize the value of each in connection with any Non-Transferred Excluded Item. If any payment is received by an ; provided, in each case, that Buyer shall have no obligation to make available information or access without reasonable prior notice, during normal business hours and subject to compliance with normal security and safety rules applicable Acquired Company, or any other value is received by an applicable Acquired Company as a result of its ownership of a Non-Transferred Excluded Item following to the applicable Closing Date, then Purchaser will cause the applicable Acquired Company to pay over such payment or an equivalent amount equal to such value received to Seller or a non-Acquired Company Affiliate of SellerProperty.

Excluded Items. Notwithstanding anything in this Agreement to the contrary, Purchaser Buyer and Seller agree that each Acquired Companies Acquisition the Purchased Assets shall exclude those items listed on Schedule 7.12 to the applicable Acquired Companies Annex 6.6 (in each casecollectively, the “Excluded Items”). , Seller shall retain all benefits and liabilities with respect to the Excluded Items, and Seller shall, prior to the Closing Date, use Commercially Reasonable Efforts commercially reasonable efforts to cause the applicable Acquired Project Companies to distribute, transfer or assign, in each case effective as of or prior to the Closing, assign each Excluded Item to Seller or a nonNon-Acquired Company Affiliate of SellerAffiliate. Purchaser Buyer acknowledges that the inability of Seller to have any Excluded Item distributed, transferred or assigned, in each case effective as of or prior to the Closing, assigned from any applicable Acquired Project Company for any reason shall not delay the applicable Closing, Closing and any Excluded Item that Seller is unable to so distribute, transfer or assign by the applicable Closing shall be referred to as a “Non-Transferred Excluded Item.” After the applicable Closing Date with respect to each Non-Transferred Excluded Item, Purchaser Buyer shall permit Seller to exclusively direct and manage each Project Company’s participation in all negotiations, arbitrations, litigation, claims, and/or bankruptcy or other proceedings involving such Non-Transferred Excluded Item, whether existing on the Closing Date or arising thereafter. Buyer shall also permit Seller to settle or compromise on behalf of any Project Company any Non-Transferred Excluded Item in Seller’s sole discretion, and shall promptly pay Seller any proceeds or recoveries received in connection with any Non-Transferred Excluded Item. Buyer shall, at Seller’s expense, use Commercially Reasonable Efforts to : (a) cause any Person under its control with knowledge of relevant facts pertaining to any Non-Transferred Excluded Item to provide assistance to Seller as reasonably requested by Seller to cause the transfer Seller; and (b) provide any relevant books, records, or other information of each Non-Transferred Excluded Item following the applicable Closing Date any Project Company to Seller or a non-Acquired Company Affiliate of Seller andand access to each Project site, pending such transferas reasonably requested by Seller, to optimize the value of each in connection with any Non-Transferred Excluded Item. If any payment is received by an applicable Acquired Company, or any other value is received by an applicable Acquired Company as a result of its ownership of a Non-Transferred Excluded Item following the applicable Closing Date, then Purchaser will cause the applicable Acquired Company to pay over such payment or an equivalent amount equal to such value received to Seller or a non-Acquired Company Affiliate of Seller.