Common use of Initial Due Diligence Clause in Contracts

Initial Due Diligence. (a) In respect of each Unit to be Refurbished, at any time prior to the MCR Decision Date of such Unit, the Generator will permit the Counterparty and the Counterparty’s Representatives, on an Open Book Basis, to monitor and be fully- informed of the matters related to the Refurbishment, the Generator’s preparations for Refurbishment and the Generator’s preparation of a final Basis of Estimate Report, including by: (i) in respect of the process of developing the Basis of Estimate Report for each Unit up to its finalization at the applicable Refurbishment Lock-in Date; (A) giving the Counterparty reasonable advance notice in the circumstances of and permitting the Counterparty’s Representatives to attend and observe, either in person or by conference call, meetings of the BP EPRB and any other formal meetings of officers of the Generator or personnel of the Generator’s project management and construction organization in respect of the Unit to be Refurbished that would reasonably be expected to be relevant to the Counterparty to understand and verify the matters contemplated by Sections 2.1 to 2.10, inclusive; and (B) in addition to the meetings referred to in (A), and without any obligation on the Generator to provide notice thereof, the Counterparty’s Representatives may attend and observe, either in person or by conference call, any other meetings in respect of the Unit to be Refurbished that would reasonably be expected to be relevant to the Counterparty to understand and verify the matters contemplated in Sections 2.1 to 2.10; provided, however, the Counterparty will not be permitted to attend or receive notice of: (X) meetings of the directors of the general partner of the Generator (or any committees thereof) or meetings of the investors of the Generator, including any of its Limited Partners, current lenders or potential investors, partners or lenders; (Y) meetings for the purpose of preparing materials for the persons referred to in (X) or for meetings of persons referred to in (X); or (Z) meetings of the officers of the Generator unless there is a specific planned agenda item relating to the Unit to be Refurbished and the matters contemplated by Sections 2.1 to 2.10; (ii) permitting the Counterparty to receive all information, disclosure and meeting materials related to the meetings that the Counterparty is permitted to attend pursuant to Section 3.2(a)(i), and any other information relating to each Basis of Estimate Report; (iii) promptly providing the Counterparty all supporting documentation for purposes of this Section 3.2(a), including: (A) supporting information relating to the Fully-Scoped Refurbishment Cost and the Fully-Scoped Refurbishment Duration; and (B) all plans, specifications, contracts, budgets, estimates, proposals, design documents, engineering documents, reports and schedules relating thereto; and (iv) providing the Counterparty and the Counterparty’s Representatives reasonable access during normal business hours to Representatives of the Generator with knowledge of and responsibility for the Refurbishment or specific aspects thereof to ask questions of and to review the plans, budgets and schedules for the Refurbishment; and the provision of all such information shall be on an Open Book Basis. (b) The Parties acknowledge and agree that it is their intention that the information requested by the Counterparty and provided by the Generator, the due diligence undertaken by the Counterparty, and the rights and obligations of the Parties provided for in Sections 2.4, 2.5, 2.6, 3.1, 3.2, 3.7 and 3.8 will be sufficient to enable the Counterparty to verify for itself that the Fully-Scoped Refurbishment Costs relate to the Refurbishment Work and to verify for itself the Fully-Scoped Refurbishment Cost and the Fully-Scoped Refurbishment Duration of each Unit. (c) Notwithstanding any provision of this Agreement to the contrary, the Counterparty shall have no right to require a change of any iteration of a Basis of Estimate Report, or any Prior Unit Cost Divergence, Prior Unit Duration Divergence, Fully-Scoped Refurbishment Cost or Fully-Scoped Refurbishment Duration, except as provided in Sections 2.4(d) and 2.4(e), in the last sentence of this Section 3.2(c) or as provided in Section 2.6(i) and (j). The Counterparty may provide comments on the information with respect to any Basis of Estimate Report, Fully-Scoped Refurbishment Cost or Fully-Scoped Refurbishment Duration of a Unit to be Refurbished, and the Generator shall give reasonable consideration thereto and provide responses to comments provided in a timely manner. The Generator will not be compelled or required to amend any Basis of Estimate Report to reflect such comments. The Generator will not be compelled or required to amend the final estimate of Fully-Scoped Refurbishment Cost or Fully-Scoped Refurbishment Duration contained in a final Basis of Estimate Report delivered pursuant to Section 2.5(a), except to the extent of any error in the scope of the Refurbishment Work to be undertaken or in the calculation of the amount of Fully-Scoped Refurbishment Costs by the Generator and except as provided in Section 2.6(i) and (j); provided that the Counterparty may not dispute such matters in respect of a Fully-Scoped Unit at any time after the date the Counterparty makes its election pursuant to Section 9.1(a) or is deemed to have made an election pursuant to Section 2.5(b) or Section 9.1(c), as the case may be. If the Counterparty claims that the Generator has made an error in the scope of the Refurbishment Work to be undertaken or in the calculation of the amount of Fully-Scoped Refurbishment Costs the Counterparty shall notify the Generator together with a reasonably detailed explanation of the reasons therefor. Within ten (10) Business Days of the Generator receiving such notice a Senior Conference shall be held pursuant to Section 18.1 to discuss such claim and if the Parties are unable to resolve such dispute within a further ten (10) days, it shall be resolved by mandatory and binding arbitration conducted in accordance with the procedures set forth in Exhibit 18.2 and to the extent that the Arbitral Tribunal determines that there has been an error in calculation or error in scope, the Fully-Scoped Refurbishment Cost shall be adjusted to deduct such amount included in error and, provided there has been a Contract Price Adjustment to reflect such Fully-Scoped Refurbishment Cost, the Contract Price will be adjusted on the next Adjustment Date thereafter in accordance with the provisions of Section 4.14(g) and Clause 3(f) of Exhibit 4.8 to reflect such adjustment.

Initial Due Diligence. ‌ (a) In respect of each Unit to be Refurbished, at any time prior to the MCR Decision Date of such Unit, the Generator will permit the Counterparty and the Counterparty’s Representatives, on an Open Book Basis, to monitor and be fully- informed of the matters related to the Refurbishment, the Generator’s preparations for Refurbishment and the Generator’s preparation of a final Basis of Estimate Report, including by: (i) in respect of the process of developing the Basis of Estimate Report for each Unit up to its finalization at the applicable Refurbishment Lock-in Date; (A) giving the Counterparty reasonable advance notice in the circumstances of and permitting the Counterparty’s Representatives to attend and observe, either in person or by conference call, meetings of the BP EPRB and any other formal meetings of officers of the Generator or personnel of the Generator’s project management and construction organization in respect of the Unit to be Refurbished that would reasonably be expected to be relevant to the Counterparty to understand and verify the matters contemplated by Sections 2.1 to 2.10, inclusive; and (B) in addition to the meetings referred to in (A), and without any obligation on the Generator to provide notice thereof, the Counterparty’s Representatives may attend and observe, either in person or by conference call, any other meetings in respect of the Unit to be Refurbished that would reasonably be expected to be relevant to the Counterparty to understand and verify the matters contemplated in Sections 2.1 to 2.10; provided, however, the Counterparty will not be permitted to attend or receive notice of: (X) meetings of the directors of the general partner of the Generator (or any committees thereof) or meetings of the investors of the Generator, including any of its Limited Partners, current lenders or potential investors, partners or lenders; (Y) meetings for the purpose of preparing materials for the persons referred to in (X) or for meetings of persons referred to in (X); or (Z) meetings of the officers of the Generator unless there is a specific planned agenda item relating to the Unit to be Refurbished and the matters contemplated by Sections 2.1 to 2.10; (ii) permitting the Counterparty to receive all information, disclosure and meeting materials related to the meetings that the Counterparty is permitted to attend pursuant to Section 3.2(a)(i), and any other information relating to each Basis of Estimate Report; (iii) promptly providing the Counterparty all supporting documentation for purposes of this Section 3.2(a), including: (A) supporting information relating to the Fully-Scoped Refurbishment Cost and the Fully-Scoped Refurbishment Duration; and (B) all plans, specifications, contracts, budgets, estimates, proposals, design documents, engineering documents, reports and schedules relating thereto; and (iv) providing the Counterparty and the Counterparty’s Representatives reasonable access during normal business hours to Representatives of the Generator with knowledge of and responsibility for the Refurbishment or specific aspects thereof to ask questions of and to review the plans, budgets and schedules for the Refurbishment; and the provision of all such information shall be on an Open Book Basis. (b) The Parties acknowledge and agree that it is their intention that the information requested by the Counterparty and provided by the Generator, the due diligence undertaken by the Counterparty, and the rights and obligations of the Parties provided for in Sections 2.4, 2.5, 2.6, 3.1, 3.2, 3.7 and 3.8 will be sufficient to enable the Counterparty to verify for itself that the Fully-Scoped Refurbishment Costs relate to the Refurbishment Work and to verify for itself the Fully-Scoped Refurbishment Cost and the Fully-Scoped Refurbishment Duration of each Unit. (c) Notwithstanding any provision of this Agreement to the contrary, the Counterparty shall have no right to require a change of any iteration of a Basis of Estimate Report, or any Prior Unit Cost Divergence, Prior Unit Duration Divergence, Fully-Scoped Refurbishment Cost or Fully-Scoped Refurbishment Duration, except as provided in Sections 2.4(d) and 2.4(e), in the last sentence of this Section 3.2(c) or as provided in Section 2.6(i) and (j). The Counterparty may provide comments on the information with respect to any Basis of Estimate Report, Fully-Scoped Refurbishment Cost or Fully-Scoped Refurbishment Duration of a Unit to be Refurbished, and the Generator shall give reasonable consideration thereto and provide responses to comments provided in a timely manner. The Generator will not be compelled or required to amend any Basis of Estimate Report to reflect such comments. The Generator will not be compelled or required to amend the final estimate of Fully-Scoped Refurbishment Cost or Fully-Scoped Refurbishment Duration contained in a final Basis of Estimate Report delivered pursuant to Section 2.5(a), except to the extent of any error in the scope of the Refurbishment Work to be undertaken or in the calculation of the amount of Fully-Scoped Refurbishment Costs by the Generator and except as provided in Section 2.6(i) and (j); provided that the Counterparty may not dispute such matters in respect of a Fully-Scoped Unit at any time after the date the Counterparty makes its election pursuant to Section 9.1(a) or is deemed to have made an election pursuant to Section 2.5(b) or Section 9.1(c), as the case may be. If the Counterparty claims that the Generator has made an error in the scope of the Refurbishment Work to be undertaken or in the calculation of the amount of Fully-Scoped Refurbishment Costs the Counterparty shall notify the Generator together with a reasonably detailed explanation of the reasons therefor. Within ten (10) Business Days of the Generator receiving such notice a Senior Conference shall be held pursuant to Section 18.1 to discuss such claim and if the Parties are unable to resolve such dispute within a further ten (10) days, it shall be resolved by mandatory and binding arbitration conducted in accordance with the procedures set forth in Exhibit 18.2 and to the extent that the Arbitral Tribunal determines that there has been an error in calculation or error in scope, the Fully-Scoped Refurbishment Cost shall be adjusted to deduct such amount included in error and, provided there has been a Contract Price Adjustment to reflect such Fully-Scoped Refurbishment Cost, the Contract Price will be adjusted on the next Adjustment Date thereafter in accordance with the provisions of Section 4.14(g) and Clause 3(f) of Exhibit 4.8 to reflect such adjustment.