Common use of Open Book Basis Clause in Contracts

Open Book Basis. (a) The Generator shall provide the Counterparty and its Representatives with the information contemplated by the definition of Open Book Basis on an Open Book Basis. The Generator acknowledges and agrees that the Counterparty is entering into this Agreement in reliance on the Generator’s covenant to provide such information on an Open Book Basis. The Counterparty acknowledges and agrees that the Generator is agreeing to provide information on an Open Book Basis in reliance on the understanding of the Parties that the Counterparty’s right to “verify” (and variations of such term) set forth in Sections 2.5(b), 3.2(a)(i), 3.2(b), 3.3(a)(ii), 3.3(b), 3.5(b), 9.1(a) and 9.1(b) is a right to review, conduct due diligence and understand such information and the subject matter in respect of which it is provided. Except as otherwise expressly provided herein (including, for greater certainty, Sections 2.4(d), 2.4(e), 2.6(i), 2.6(j), 3.1(b), 3.2(c), 3.5(c) and 4.14), such right does not (i) create a right of approval or consent, or (ii) require the Generator to address any issues raised by the Counterparty in such process. (b) Without limitation of the generality of the foregoing, at any time there is to be the final determination of an Input necessary for a proposed Contract Price Adjustment in accordance with any of the provisions of Article 4 (other than pursuant to Sections 4.8 or 4.10, the verification of which is provided for elsewhere in this Agreement) or Section 15.2, the Generator shall notify the Counterparty and provide all information related to such Input on an Open Book Basis to verify such final Input. The Counterparty will have a reasonable opportunity under the circumstances to conduct due diligence with respect thereto consistent with the principle in Section 3.1(a), which period shall not exceed five (5) Business Days in the case of a publicly available Input such as CPI or WRE or twenty (20) Business Days in the case of Inputs comprising Trades Rates or the Inputs required for Exhibit 4.12, and shall not exceed sixty (60) days in any other case for which a period for verification is not otherwise provided herein. The Counterparty shall notify the Generator within the applicable time period of receiving a final Input as to whether or not it has verified the same. The Counterparty will be deemed to have verified such final Input if it does not respond to the Generator within such time period. If the Counterparty claims that the Generator has made an error in: (i) the calculation of any amount; (ii) transcribing any amount from another document; or (iii) identifying a publicly available Input, such as CPI or WRE, the Counterparty shall notify the Generator together with a reasonably detailed explanation of the reasons therefor within the time period specified above with respect to such Input. 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 in accordance with the provisions of Section 18.2. Upon final resolution of such dispute, the Contract Price Adjustment that should have been made on the Subject Adjustment Date shall be made in accordance with the provisions of Section 4.14(g). (c) The Parties acknowledge that at no time shall any right to “verify” (or variations of such term) of the Counterparty hereunder give the Counterparty a right to prevent or delay the timely performance by the Generator of its obligations hereunder, nor shall any such right act to extend any express time period for audit, verification, inspection or due diligence rights of the Counterparty hereunder, nor delay any undisputed Contract Price Adjustment to be made on an Adjustment Date. For greater certainty, any right to verify (or variations thereof) shall terminate upon the expiry of a related due diligence, inspection or audit right or upon a deemed verification expressly provided herein. This Section 3.1(c) shall not derogate from any express right of the Counterparty set forth in this Agreement to dispute any matter that relates to information that the Counterparty is entitled to verify pursuant to this Agreement and that it has not yet verified within the time period permitted for such verification or has not yet been deemed to have verified. (d) The Generator will, after the date hereof, ensure that its agreements (including, for greater certainty, requests for proposals and confidentiality agreements) with its suppliers, contractors and subcontractors and its potential suppliers, contractors and subcontractors, for Refurbishment Work or Asset Management Work permit the Generator to disclose to the Counterparty and its Representatives information relating to the costing and scheduling of the applicable Refurbishment Work or Asset Management Work. In addition, the Generator shall use Commercially Reasonable Efforts to include a provision in its agreements entered into after the date hereof with its suppliers, contractors and subcontractors permitting access by the Counterparty and its Representatives, to the technical, design, construction and detailed costing information of each such supplier, contractor and subcontractor relating to the Refurbishment Work or Asset Management Work that the Generator is entitled to receive and each such supplier’s, contractor’s and subcontractor’s records pertaining to the applicable Refurbishment Work or Asset Management Work. If after using Commercially Reasonable Efforts the Generator is unable to obtain such broader access by the Counterparty or the Counterparty’s Representatives to any of such supplier’s, contractor’s or subcontractor’s technical, design, construction and detailed costing information and records, the Generator shall notify the Counterparty. If the Counterparty still wishes to obtain such access, it shall notify the Generator and the Generator and the Counterparty shall each use Commercially Reasonable Efforts to implement confidentiality requirements that such supplier, contractor or subcontractor may reasonably request, such as implementing ethical screens or not using individual Representatives who may be direct competitors of such supplier, contractor or subcontractor or limiting the scope of the information sought from such supplier, contractor or subcontractor; provided, however, that, except for information of such supplier, contractor or subcontractor relating to the costing and schedule, the Generator shall not be required to provide the access contemplated by this Article 3 without the agreement or consent of such supplier, contractor or subcontractor. Access to a supplier’s, contractor’s or subcontractor’s records shall be during normal business hours. The Counterparty acknowledges that the OPG Lease and the Ancillary Agreements contain provisions relating to disclosure of confidential information and agree not to disclose any of OPG’s confidential information received by it pursuant to the terms hereof except in accordance with the terms hereof.

Open Book Basis. ‌ (a) The Generator shall provide the Counterparty and its Representatives with the information contemplated by the definition of Open Book Basis on an Open Book Basis. The Generator acknowledges and agrees that the Counterparty is entering into this Agreement in reliance on the Generator’s covenant to provide such information on an Open Book Basis. The Counterparty acknowledges and agrees that the Generator is agreeing to provide information on an Open Book Basis in reliance on the understanding of the Parties that the Counterparty’s right to “verify” (and variations of such term) set forth in Sections 2.5(b), 3.2(a)(i), 3.2(b), 3.3(a)(ii), 3.3(b), 3.5(b), 9.1(a) and 9.1(b) is a right to review, conduct due diligence and understand such information and the subject matter in respect of which it is provided. Except as otherwise expressly provided herein (including, for greater certainty, Sections 2.4(d), 2.4(e), 2.6(i), 2.6(j), 3.1(b), 3.2(c), 3.5(c) and 4.14), such right does not (i) create a right of approval or consent, or (ii) require the Generator to address any issues raised by the Counterparty in such process. (b) Without limitation of the generality of the foregoing, at any time there is to be the final determination of an Input necessary for a proposed Contract Price Adjustment in accordance with any of the provisions of Article 4 (other than pursuant to Sections 4.8 or 4.10, the verification of which is provided for elsewhere in this Agreement) or Section 15.2, the Generator shall notify the Counterparty and provide all information related to such Input on an Open Book Basis to verify such final Input. The Counterparty will have a reasonable opportunity under the circumstances to conduct due diligence with respect thereto consistent with the principle in Section 3.1(a), which period shall not exceed five (5) Business Days in the case of a publicly available Input such as CPI or WRE or twenty (20) Business Days in the case of Inputs comprising Trades Rates or the Inputs required for Exhibit 4.12, and shall not exceed sixty (60) days in any other case for which a period for verification is not otherwise provided herein. The Counterparty shall notify the Generator within the applicable time period of receiving a final Input as to whether or not it has verified the same. The Counterparty will be deemed to have verified such final Input if it does not respond to the Generator within such time period. If the Counterparty claims that the Generator has made an error in: (i) the calculation of any amount; (ii) transcribing any amount from another document; or (iii) identifying a publicly available Input, such as CPI or WRE, the Counterparty shall notify the Generator together with a reasonably detailed explanation of the reasons therefor within the time period specified above with respect to such Input. 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 in accordance with the provisions of Section 18.2. Upon final resolution of such dispute, the Contract Price Adjustment that should have been made on the Subject Adjustment Date shall be made in accordance with the provisions of Section 4.14(g). (c) The Parties acknowledge that at no time shall any right to “verify” (or variations of such term) of the Counterparty hereunder give the Counterparty a right to prevent or delay the timely performance by the Generator of its obligations hereunder, nor shall any such right act to extend any express time period for audit, verification, inspection or due diligence rights of the Counterparty hereunder, nor delay any undisputed Contract Price Adjustment to be made on an Adjustment Date. For greater certainty, any right to verify (or variations thereof) shall terminate upon the expiry of a related due diligence, inspection or audit right or upon a deemed verification expressly provided herein. This Section 3.1(c) shall not derogate from any express right of the Counterparty set forth in this Agreement to dispute any matter that relates to information that the Counterparty is entitled to verify pursuant to this Agreement and that it has not yet verified within the time period permitted for such verification or has not yet been deemed to have verified. (d) The Generator will, after the date hereof, ensure that its agreements (including, for greater certainty, requests for proposals and confidentiality agreements) with its suppliers, contractors and subcontractors and its potential suppliers, contractors and subcontractors, for Refurbishment Work or Asset Management Work permit the Generator to disclose to the Counterparty and its Representatives information relating to the costing and scheduling of the applicable Refurbishment Work or Asset Management Work. In addition, the Generator shall use Commercially Reasonable Efforts to include a provision in its agreements entered into after the date hereof with its suppliers, contractors and subcontractors permitting access by the Counterparty and its Representatives, to the technical, design, construction and detailed costing information of each such supplier, contractor and subcontractor relating to the Refurbishment Work or Asset Management Work that the Generator is entitled to receive and each such supplier’s, contractor’s and subcontractor’s records pertaining to the applicable Refurbishment Work or Asset Management Work. If after using Commercially Reasonable Efforts the Generator is unable to obtain such broader access by the Counterparty or the Counterparty’s Representatives to any of such supplier’s, contractor’s or subcontractor’s technical, design, construction and detailed costing information and records, the Generator shall notify the Counterparty. If the Counterparty still wishes to obtain such access, it shall notify the Generator and the Generator and the Counterparty shall each use Commercially Reasonable Efforts to implement confidentiality requirements that such supplier, contractor or subcontractor may reasonably request, such as implementing ethical screens or not using individual Representatives who may be direct competitors of such supplier, contractor or subcontractor or limiting the scope of the information sought from such supplier, contractor or subcontractor; provided, however, that, except for information of such supplier, contractor or subcontractor relating to the costing and schedule, the Generator shall not be required to provide the access contemplated by this Article 3 without the agreement or consent of such supplier, contractor or subcontractor. Access to a supplier’s, contractor’s or subcontractor’s records shall be during normal business hours. The Counterparty acknowledges that the OPG Lease and the Ancillary Agreements contain provisions relating to disclosure of confidential information and agree not to disclose any of OPG’s confidential information received by it pursuant to the terms hereof except in accordance with the terms hereof.