CONFIDENTIALITY AND RELIANCE AGREEMENT
By clicking the button granting you access to the Offering Memoranda (as defined below), you acknowledge that the Evaluation Materials (as defined below) are the proprietary and confidential information of Hybar LLC (the "Company") and/or its affiliates, related parties, current and prospective business partners and other entities (collectively with the Company, the "Covered Parties"), and you agree to advise your directors, officers, employees, agents, affiliates and advisers, including, without limitation, your attorneys, accountants, professional consultants, valuation experts, pricing services, and investment bankers (with respect to any person, the foregoing persons are hereinafter referred to as such person's "Representatives") who are provided any Evaluation Materials of their confidential nature and that such Evaluation Materials are subject to this confidentiality agreement (this "Agreement"). Notwithstanding the foregoing, by accepting the terms of this Agreement, the party accepting these terms is not obligated to undertake any monitoring or enforcement activities with respect to any of its Representatives.
In addition, by accepting this Agreement, you represent to the Company that (a) you are, or are an advisor to, a prospective purchaser of the Industrial Development Revenue Bonds (Hybar Steel Project), Series 2023, to be issued in one or more series (the "Bonds"), and that (b) you are, or such prospective purchaser is, a "qualified institutional buyer" within the meaning of Rule 144A promulgated and adopted by the Securities and Exchange Commission ("SEC") pursuant to the Securities Act of 1933, as amended, and you have reason to believe the purchase of such Bonds can be made, subject to performance of due diligence. In connection with the receipt of the Evaluation Materials, you represent that you have no intent to, and will not, provide information gained through such access to a competitor of the Company, except as may be required by applicable law. Additionally, you represent that you will comply in all material respects with applicable law, including any laws relating to the use and publication of the Evaluation Materials.
The information furnished to you pursuant to this Agreement, together with any analyses, compilations, studies or other documents prepared by you or your Representatives that reproduce, in whole or in part, such information furnished to you or your Representatives is collectively referred to as the "Evaluation Materials." Notwithstanding the foregoing, the term Evaluation Materials does not include information that (i) was or becomes generally available to the public, either through the Electronic Municipal Market Access ("EMMA") website or otherwise, other than as a result of a disclosure by you or your Representatives in violation of this Agreement, (ii) was or becomes available to you on a non-confidential basis from a source other than the Covered Parties or their Representatives, provided that such source was not known by you or your Representatives to be bound by any agreement to keep such information confidential or (iii) the Company or any other Covered Party has specifically marked or otherwise designated in writing as not being confidential.
In connection with such Evaluation Materials, you hereby agree that, you shall keep all such Evaluation Materials confidential and not disclose any Evaluation Materials to any third party, except that disclosure of Evaluation Materials shall be permitted if such disclosure (i) has been consented to in writing by the Company, (ii) is required by law, or otherwise requested pursuant to or by any regulation, regulatory authority, stock exchange rule or other applicable judicial or governmental order (collectively, the "Regulatory Parties") or (iii) is made to your Representatives who need to know such information for the purpose of reviewing, assessing and advising you with respect to potentially purchasing, selling or continuing to hold the Bonds (it being understood that such Representatives shall have been advised of this Agreement). Notwithstanding the foregoing, nothing herein contained shall be construed so as to prevent any advisor to a purchaser or prospective purchaser of the Bonds from disclosing information to clients, client representatives or similar parties holding an interest (beneficial or otherwise) in the Bonds.
The Company acknowledges and agrees with you that the confidential nature and treatment of all of the Evaluation Materials will expire upon the date on which the information in the Evaluation Materials is otherwise made public (the "Expiration"). For the avoidance of doubt, the Expiration shall not apply to the Report (as defined below), which Report is always intended to remain confidential, not subject to public disclosure, and subject to "The Conditions" below, notwithstanding items (i) and (ii) above.
Specific Conditions for Reliance on the Independent Engineer for Scrap Metal Recycling and Steel Bar Production Facility Technical Due Diligence Report
Hatch Ltd. (“Independent Engineer”) allows prospective purchasers of the Bonds, the Trustee and the Collateral Agent (each a “Relying Party”) to rely on the Independent Engineer for Scrap Metal Recycling and Steel Bar Production Facility Technical Due Diligence Report (the “Report”) included in the Preliminary Limited Offering Memorandum, as supplemented, or the Limited Offering Memorandum (the “Offering Memoranda”) on the basis and in consideration of the conditions set forth below:
The Conditions
- The Report may be relied upon by the Relying Parties only to the extent that KfW IPEX-Bank GmbH, the original client (the "Client"), was entitled to rely on the Report. Without limiting the terms and conditions set forth herein, each Relying Party acknowledges and agrees as an express condition precedent to relying upon the Report, to be subject to the limitations and conditions stated in the Report and these Conditions set forth herein.
- All information received from the Client and third parties in the preparation of the Report has been assumed to be correct and the Independent Engineer assumes no responsibility for the accuracy, completeness or workmanship of any such information.
- The information and conclusions contained in the Report apply as it existed at the time of its assessment. Furthermore, Relying Party acknowledges that the Report is time dependent and that no such use or reliance upon said Report shall occur after one year from the date of the Report without the Independent Engineer's prior written authorization.
- The Report relates solely to the specific project for which the Independent Engineer was retained and the stated objective for which the Report was prepared and shall not be used or relied upon by each Relying Party for any variation or extension of this project, any other project or any other purpose.
- Each Relying Party agrees that the Report shall be used solely for the purpose of issuing and selling pursuant to the Offering Memoranda (the "Purpose"). The Report is intended to be used in its entirety. The Report may be attached as an exhibit or appendix to the Offering Memoranda and excerpts from the Report may be used in summary sections of the Offering Memoranda, however, no excerpts may be taken to be representative of the findings in the assessment.
- The Report shall be held in confidence may not be shared or reproduced in whole or in part, except as required by the Relying Parties' solicitors or advisors in connection with the Purpose, without the prior written consent of the Independent Engineer. In any event, the Report shall be provided in its entirety.
- It is understood and agreed by the Parties that the Independent Engineer provides no warranty, express or implied, of any kind and owes no separate duty of care to a Relying Party. Without limiting the generality of the foregoing, it is agreed and understood by the Parties that the Independent Engineer makes no representation or warranty whatsoever as to the sufficiency of its scope of work for a Relying Party's Purpose.
- Notwithstanding anything to the contrary that may be contained in this Agreement or arising out of the Report, each Relying Party hereby agrees that the maximum aggregate liability of the Independent Engineer to all parties relying on the Report including the Client, for any and all direct, indirect or consequential losses, claims expenses or damages in whole or in part arising out of or related to the Report, under any theory of law, including but not limited to claims for errors, omissions, negligence and/or negligent misrepresentation (the "Claims"), shall be strictly limited to and not exceed, collectively, the total fee paid to the Independent Engineer in connection with its preparation and delivery of the Report (the "Limited Amount"). Each Relying Party agrees that the responsibility and liability for any Claims in excess of the Limited Amount shall rest solely with parties other than the Independent Engineer.
IF YOU ARE NOT PREPARED TO ACCEPT THE TERMS SET FORTH ABOVE, YOU MUST EXIT THIS PAGE. BY CLICKING ON THE "I AGREE" BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE RELIANCE PROVISIONS WITH RESPECT TO THE INDEPENDENT ENGINEER'S REPORT ABOVE.