Engineering Reviews. (A) Either prior to or as of the date of this Agreement, or within 10 Business Days after the date of this Agreement, the Parents have jointly engaged or will jointly engage one or more mutually acceptable engineering and environmental consulting firms to perform the services specified in this Section 5.07(a)(v) and Section 5.07(b) (the “Consulting Firm”). The Parents will share the costs of the Consulting Firm in the same proportions as those set forth for the title commitments, and will each bear their other costs. During the period commencing on the date of this Agreement (or, if later, the date on which the Consulting Firm is retained) and ending 75 days thereafter (the “Review Period”), the Consulting Firm, along with up to two individuals designated by each - 40 - Parent (such individuals, together with the Consulting Firm, the “Joint Review Team”) will conduct an engineering review of each Real Property that is a production facility (including bakeries) (collectively, the “Reviewed Facilities”), in accordance with the protocols and standards set forth on the scope of work attached as Exhibit D-1 (the “Engineering Reviews”). For the avoidance of doubt, the Joint Review will not conduct Engineering Reviews of any of the Reviewed Facilities that are warehouses or other ancillary, non-production sites. (B) Pursuant to the Engineering Reviews, the Joint Review Team will identify whether the issues exist with respect to each Reviewed Facility that is reviewed pursuant to Section 5.07(a)(v) of a nature described in Exhibit D-1 (collectively, “Engineering Issues”). (C) To the extent that any Engineering Issues are identified by the Joint Review Team pursuant to the Engineering Reviews during the Review Period, either Oracle (with respect to Reviewed Facilities that are owned or contributed by the Oracle Group) or ▇▇▇▇▇▇ and ▇▇▇▇ (with respect to Reviewed Facilities that are owned or contributed by the ▇▇▇▇▇▇ Group or Iris Group) will be responsible for correcting such Engineering Issues in a commercially reasonable manner, and will be 100% responsible for any costs associated with doing so, provided, however, that notwithstanding the foregoing, neither Oracle, on the one hand, nor ▇▇▇▇▇▇ and ▇▇▇▇, collectively on the other hand, will be required to spend or incur direct costs (excluding any payments required to be made to the Consulting Firm) in excess of $100,000,000 in performing their respective obligations to correct such Engineering Issues (it being understood that such obligations of ▇▇▇▇▇▇ and Sky will be undertaken by them Severally). In the event that the reasonably expected costs exceed $100,000,000, such excess may be taken into account in determining whether a Material Adverse Effect of the relevant Parent has taken place (in other words, such excess will be deemed a “Loss” of a nature that is not indemnifiable by the contributing Parent, and would be considered for purposes of determining whether the $100,000,000 threshold in the definition of Oracle Material Adverse Effect or Sky Material Adverse Effect, as the case may be, has been reached). Such corrections will be made as promptly as reasonably practicable, it being understood that such corrections may not be completed prior to the Closing. (D) Decisions of the Joint Review Team will be made by consensus to the extent reasonably practicable. If the members of the Joint Review Team are unable to decide, then decisions will be made by a majority vote, where Oracle will cast one vote, ▇▇▇▇▇▇ and ▇▇▇▇ will collectively cast one vote, and the Consulting Firm will act as the tiebreaking vote.
Appears in 1 contract
Sources: Master Agreement (CHS Inc)
Engineering Reviews. (A) Either prior to or as of the date of this Agreement, or within 10 Business Days after the date of this Agreement, the Parents have jointly engaged or will jointly engage one or more mutually acceptable engineering and environmental consulting firms to perform the services specified in this Section 5.07(a)(v) and Section 5.07(b) (the “Consulting Firm”). The Parents will share the costs of the Consulting Firm in the same proportions as those set forth for the title commitments, and will each bear their other costs. During the period commencing on the date of this Agreement (or, if later, the date on which the Consulting Firm is retained) and ending 75 days thereafter (the “Review Period”), the Consulting Firm, along with up to two individuals designated by each - 40 - Parent (such individuals, together with the Consulting Firm, the “Joint Review Team”) will conduct an engineering review of each Real Property that is a production facility (including bakeries) (collectively, the “Reviewed Facilities”), in accordance with the protocols and standards set forth on the scope of work attached as Exhibit D-1 (the “Engineering Reviews”). For the avoidance of doubt, the Joint Review will not conduct Engineering Reviews of any of the Reviewed Facilities that are warehouses or other ancillary, non-production sites.
(B) Pursuant to the Engineering Reviews, the Joint Review Team will identify whether the issues exist with respect to each Reviewed Facility that is reviewed pursuant to Section 5.07(a)(v) of a nature described in Exhibit D-1 (collectively, “Engineering Issues”).
(C) To the extent that any Engineering Issues are identified by the Joint Review Team pursuant to the Engineering Reviews during the Review Period, either Oracle (with respect to Reviewed Facilities that are owned or contributed by the Oracle Group) or ▇▇▇▇▇▇ and ▇▇▇▇ (with respect to Reviewed Facilities that are owned or contributed by the ▇▇▇▇▇▇ Group or Iris Group) will be responsible for correcting such Engineering Issues in a commercially reasonable manner, and will be 100% responsible for any costs associated with doing so, provided, however, that notwithstanding the foregoing, neither Oracle, on the one hand, nor ▇▇▇▇▇▇ and ▇▇▇▇, collectively on the other hand, will be required to spend or incur direct costs (excluding any payments required to be made to the Consulting Firm) in excess of $100,000,000 in performing their respective obligations to correct such Engineering Issues (it being understood that such obligations of ▇▇▇▇▇▇ and Sky will be undertaken by them Severally). In the event that the reasonably expected costs exceed $100,000,000, such excess may be taken into account in determining whether a Material Adverse Effect of the relevant Parent has taken place (in other words, such excess will be deemed a “Loss” of a nature that is not indemnifiable by the contributing Parent, and would be considered for purposes of determining whether the $100,000,000 threshold in the definition of Oracle Material Adverse Effect or Sky Material Adverse Effect, as the case may be, has been reached). Such corrections will be made as promptly as reasonably practicable, it being understood that such corrections may not be completed prior to the Closing.
(D) Decisions of the Joint Review Team will be made by consensus to the extent reasonably practicable. If the members of the Joint Review Team are unable to decide, then decisions will be made by a majority vote, where Oracle will cast one vote, ▇▇▇▇▇▇ and ▇▇▇▇ will collectively cast one vote, and the Consulting Firm will act as the tiebreaking vote.
Appears in 1 contract
Engineering Reviews. (A) Either prior to or as of the date of this Agreement, or within 10 Business Days after the date of this Agreement, the Parents have jointly engaged or will jointly engage one or more mutually acceptable engineering and environmental consulting firms to perform the services specified in this Section 5.07(a)(v) and Section 5.07(b) (the “Consulting Firm”). The Parents will share the costs of the Consulting Firm in the same proportions as those set forth for the title commitments, and will each bear their other costs. During the period commencing on the date of this Agreement (or, if later, the date on which the Consulting Firm is retained) and ending 75 days thereafter (the “Review Period”), the Consulting Firm, along with up to two individuals designated by each - 40 - Parent (such individuals, together with the Consulting Firm, the “Joint Review Team”) will conduct an engineering review of each Real Property that is a production facility (including bakeries) (collectively, the “Reviewed Facilities”), in accordance with the protocols and standards set forth on the scope of work attached as Exhibit D-1 (the “Engineering Reviews”). For the avoidance of doubt, the Joint Review will not conduct Engineering Reviews of any of the Reviewed Facilities that are warehouses or other ancillary, non-production sites.
(B) Pursuant to the Engineering Reviews, the Joint Review Team will identify whether the issues exist with respect to each Reviewed Facility that is reviewed pursuant to Section 5.07(a)(v) of a nature described in Exhibit D-1 (collectively, “Engineering Issues”).
(C) To the extent that any Engineering Issues are identified by the Joint Review Team pursuant to the Engineering Reviews during the Review Period, either Oracle (with respect to Reviewed Facilities that are owned or contributed by the Oracle Group) or ▇▇▇▇▇▇ and ▇▇▇▇ (with respect to Reviewed Facilities that are owned or contributed by the ▇▇▇▇▇▇ Group or Iris Group) will be responsible for correcting such Engineering Issues in a commercially reasonable manner, and will be 100% responsible for any costs associated with doing so, provided, however, that notwithstanding the foregoing, neither Oracle, on the one hand, nor ▇▇▇▇▇▇ and ▇▇▇▇, collectively on the other hand, will be required to spend or incur direct costs (excluding any payments required to be made to the Consulting Firm) in excess of $100,000,000 in performing their respective obligations to correct such Engineering Issues (it being understood that such obligations of ▇▇▇▇▇▇ and Sky will be undertaken by them Severally). In the event that the reasonably expected costs exceed $100,000,000, such excess may be taken into account in determining whether a Material Adverse Effect of the relevant Parent has taken place (in other words, such excess will be deemed a “Loss” of a nature that is not indemnifiable by the contributing Parent, and would be considered for purposes of determining whether the $100,000,000 threshold in the definition of Oracle Material Adverse Effect or Sky Material Adverse Effect, as the case may be, has been reached). Such corrections will be made as promptly as reasonably practicable, it being understood that such corrections may not be completed prior to the Closing.
(D) Decisions of the Joint Review Team will be made by consensus to the extent reasonably practicable. If the members of the Joint Review Team are unable to decide, then decisions will be made by a majority vote, where Oracle will cast one vote, ▇▇▇▇▇▇ and ▇▇▇▇ will collectively cast one vote, and the Consulting Firm will act as the tiebreaking vote. - 41 - (g) Environmental Site Reviews.
Appears in 1 contract
Sources: Joint Venture Agreement