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Commission
File
Number
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Exact name of registrant as specified in its
charter, address of principal executive offices and
registrant's telephone number
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IRS Employer
Identification
Number
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001-36518
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NEXTERA ENERGY PARTNERS, LP
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30-0818558
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700 Universe Boulevard
Juno Beach, Florida 33408
(561) 694-4000
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(a)
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On March 30, 2018, a subsidiary of NextEra Energy Partners, LP (NEP) (the seller) entered into a purchase and sale agreement with Canada Pension Plan Investment Board (the purchaser). Pursuant to the terms of the purchase and sale agreement, the purchaser agreed to acquire NextEra Energy Canada Partners Holdings, ULC, a NEP subsidiary that indirectly owns interests in four wind generation facilities and two solar generation facilities located in Ontario, Canada with a generating capacity totaling approximately 396 megawatts.
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(b)
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On April 2, 2018, a subsidiary of NEP entered into a foreign exchange forward transaction letter agreement (the forward agreement) with Citibank, N.A. NEP entered into the forward agreement to manage foreign currency exchange rate risk associated with the cash consideration NEP expects to receive upon closing of the purchase and sale agreement discussed above. The forward agreement, which is designed to hedge fluctuation in the exchange rate for U.S. dollars to Canadian dollars, has a notional amount of CAD $741 million and a settlement rate of 1.291449.
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NextEra Energy Partners, LP
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(Registrant)
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TERRELL KIRK CREWS, II
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Terrell Kirk Crews, II
Controller and Chief Accounting Officer
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TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS AND CONSTRUCTION
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1
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1.1
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Definitions.
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1
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1.2
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Rules of Construction.
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21
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ARTICLE 2 PURCHASE AND SALE AND CLOSING
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22
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2.1
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Purchase and Sale.
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22
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2.2
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Purchase Price.
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22
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2.3
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Closing.
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23
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2.4
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Aggregate Net Working Capital Adjustment Amount.
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23
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2.5
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Jericho Completion Adjustment Amount.
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26
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2.6
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Withholding.
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26
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ARTICLE 3 REPRESENTATIONS AND WARRANTIES REGARDING SELLER
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27
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3.1
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Organization.
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27
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3.2
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Authority.
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27
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3.3
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No Conflicts.
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27
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3.4
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Consents and Approvals.
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28
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3.5
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Purchased Shares.
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28
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3.6
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Legal Proceedings.
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28
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3.7
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Compliance with Laws.
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29
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3.8
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Brokers.
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29
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3.9
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Not Taxable Canadian Property.
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29
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3.10
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Bankruptcy.
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29
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ARTICLE 4 REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED COMPANIES
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29
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4.1
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Organization.
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29
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4.2
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No Conflicts.
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30
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4.3
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Consents and Approvals.
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31
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4.4
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Capitalization.
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31
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4.5
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Activities of the Acquired Companies.
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31
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4.6
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Title to Assets.
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31
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4.7
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Bank Accounts.
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32
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4.8
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Subsidiaries.
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33
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4.9
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Legal Proceedings.
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33
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4.10
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Compliance with Laws.
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33
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4.11
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Aboriginal Matters.
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33
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4.12
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Liabilities.
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33
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4.13
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Taxes.
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33
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4.14
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Contracts.
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35
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EXHIBITS
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Exhibit A
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–
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Aggregate Net Working Capital Calculations
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Exhibit B
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–
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Form of Indemnity Agreement
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Exhibit C
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–
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Knowledge of Seller
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Exhibit D
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–
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Knowledge of Buyer
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Exhibit E
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–
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Form of O&M Agreement
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Exhibit F
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–
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Form of Transition Services Agreement
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Exhibit G
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–
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Form of Bringdown Certificate
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Exhibit H
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–
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Form of Resignation and Release
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Exhibit I
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–
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Not Used
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Exhibit J
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–
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Form of Officer’s Certificate
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Exhibit K
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–
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Form of Billing and Metering Services Agreement
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Exhibit L
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–
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Forms of Common Facilities Agreements
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Exhibit M
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–
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Forms of Shared Facilities Agreements
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DISCLOSURE SCHEDULES
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Schedule 1.1(a)
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–
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Permitted Encumbrances
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Schedule 3.4
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–
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Seller Consents and Shared Facilities Consents
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Schedule 4.3
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Company Consents
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Schedule 4.4
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–
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Capitalization
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Schedule 4.6
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Title to Assets
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Schedule 4.7
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–
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Bank Accounts
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Schedule 4.9
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–
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Legal Proceedings
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Schedule 4.11
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–
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Aboriginal Matters
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Schedule 4.12
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–
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Liabilities
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Schedule 4.13
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–
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Taxes
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Schedule 4.14
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–
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Material Contracts
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Schedule 4.15
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–
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Real Property
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Schedule 4.16
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–
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Permits
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Schedule 4.17(a)
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–
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Material Environmental Permits
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Schedule 4.17(b)
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–
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Environmental Laws and Permits Material Compliance
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Schedule 4.17(c)
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–
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Material Environmental Claims, Actions, Proceedings or Investigations
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Schedule 4.17(d)
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–
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Certain Releases of Hazardous Materials
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Schedule 4.26
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–
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Absence of Certain Changes
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Schedule 4.31
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–
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Warranties
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Schedule 5.3
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–
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Buyer Approvals
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Schedule 6.4
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–
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Exceptions to Conduct of Business
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Schedule 6.6
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–
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Support Obligations
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Schedule 6.7
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–
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Excluded Items
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Schedule 6.8
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–
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Excluded Contracts
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Schedule 6.14
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–
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Primary Representatives
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- vi -
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Schedule 6.20
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–
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Additional Structuring
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Schedule 6.25
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–
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Receivables Owed to Partnerships
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1.1
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Definitions.
Terms defined in the preamble, Recitals or other Sections of this Agreement shall have the meanings set forth therein and the terms defined in this
Section 1.1
shall have the meanings set forth herein.
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(a)
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the credit agreement dated as of June 13, 2014 between,
inter alios
, Varna Wind, LP, as borrower, Sumitomo Mitsui Banking Corporation, as administrative agent, Sumitomo Mitsui Banking Corporation of Canada, as collateral agent and depositary agent, and the financial institutions parties thereto; and
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(b)
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the credit agreement dated as of April 28, 2015 between,
inter alios
, Jericho Wind, LP, as borrower, The Bank of Tokyo-Mitsubishi UFJ, Ltd., as administrative agent, MUFG Union Bank, N.A., as collateral agent, and the financial institutions parties thereto (the “
Jericho Credit Agreement
”).
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(a)
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Feed-In Tariff Contract (Contract Identification # F-000523-WIN-130-601) between the IESO and Conestogo Wind, LP, dated April 13, 2010, as amended pursuant to (i) a FIT Amending Agreement re: Extension of Milestone Date for Commercial Operation for Non-CAE Projects dated June 28, 2011, and (ii) a FIT Amending Agreement re: Extension of
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(b)
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Feed-In-Tariff Contract (Contract Identification # F-000568-WIN-130-601) between the IESO and Summerhaven Wind, LP, dated April 19, 2010, as amended pursuant to (i) a Facility Amendment Consent Agreement dated February 11, 2011, (ii) a FIT Amending Agreement re: Extension of Milestone Date for Commercial Operation for Non-CAE Projects dated July 6, 2011, (iii) a Facility Amendment Consent Agreement dated April 4, 2012, (iv) a FIT Amending Agreement re: Extension of Milestone Date for Commercial Operation for Non-CAE Projects dated August 1, 2013, and (v) a FIT Amendment Agreement re: Market Rule Amendment MR-00381 dated September 27, 2013;
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(c)
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Feed-In-Tariff Contract (Contract Identification # F-002172-WIN-130-601) dated as of July 13, 2011 between the IESO and Jericho Wind, Inc., as amended pursuant to a Consent Agreement dated as of December 12, 2012, as further amended pursuant to a Contract Amendment Agreement dated as of January 22, 2013 and as further amended pursuant to an Amended and Restated Contract Amendment Agreement dated as of September 27, 2013 and as assigned by Jericho Wind, Inc. to Jericho Wind, LP pursuant to an Assumption and Acknowledgment Agreement dated as of May 22, 2014 between the OPA, Jericho Wind, LP and Jericho Wind, Inc.; and
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(d)
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Feed-In-Tariff Contract (Contract Identification # F-002171-WIN-130-601) dated as of July 13, 2012 between the IESO and Varna Wind, Inc., as amended pursuant to a Contract Amendment Agreement dated as of January 22, 2013, as further amended by an Amended and Restated Contract Amendment Agreement dated as of September 27, 2013, as further amended pursuant to a FIT Amending Agreement Re. Extension of Milestone Date for Commercial Operation for Non-CAE Projects dated March 28, 2014 and as assigned by Varna Wind, Inc. to Varna Wind, LP pursuant to an Assumption and Acknowledgement Agreement dated June 9, 2014 between the OPA, Varna Wind, LP and Varna Wind, Inc.
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(a)
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the amended and restated trust indenture, dated as of June 13, 2014, and amended by the first supplemental indenture, dated as of July 2, 2015 between, inter alios, St. Clair Solar, LP and St. Clair Holding, ULC, as issuers, Moore Solar, LP, as project owner and guarantor, Sombra Solar, LP, as project owner and guarantor, and BNY Trust Company of Canada, as trustee (the “
St. Clair Indenture
”); and
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(b)
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the trust indenture, dated as of December 12, 2013 and amended by the first supplemental indenture dated June 12, 2015, between, inter alios, Trillium Windpower, LP, as issuer, Conestogo Wind, LP, as project owner and guarantor, Summerhaven Wind, LP, as project owner and guarantor, and BNY Trust Company of Canada, as trustee (the “
Conestogo Indenture
”).
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1.2
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Rules of Construction.
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(a)
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All “Recital”, “Article”, “Section”, “Schedule”, “Exhibit” and “Appendix” references used in this Agreement are to recitals, articles, sections, schedules, exhibits and appendices to this Agreement unless otherwise specified. The Exhibits, Schedules and Appendices attached to this Agreement constitute a part of this Agreement and are incorporated herein for all purposes and references to this Agreement shall include a reference to all Exhibits, Schedules and Appendices, as the same may be amended, modified or supplemented from time to time in accordance with this Agreement.
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(b)
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A term defined as one part of speech (such as a noun) shall have a corresponding meaning when used as another part of speech (such as a verb). A term defined in the singular number shall include the correlative plural and vice versa.
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(c)
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The words “includes” or “including” shall mean “including without limitation.”
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(d)
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The words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear.
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(e)
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Unless otherwise specified, any reference to a Law shall include any amendment thereof or any successor thereto and any rules and regulations promulgated thereunder. Any reference herein to a particular provision or part of any statute will include a reference to that provision or part as it may be renumbered or amended from time to time and any successor provision or part or any renumbering or amendment thereof. All references to a provision of the Tax Act shall be deemed to include a reference to any equivalent or corresponding provision under the applicable tax legislation of a Province or Territory of Canada.
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(f)
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All references to a particular entity shall include a reference to such entity’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement.
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(g)
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References to any agreement (including this Agreement), document or instrument shall mean a reference to such agreement, document or instrument as the same may be amended, modified, supplemented or replaced from time to time.
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(h)
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The word “or” will have the inclusive meaning represented by the phrase “and/or.” “Shall” and “will” mean “must” and shall and will have equal force and effect and express an obligation. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing in a visible form.
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(i)
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Time is of the essence in this Agreement. Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. Whenever any action must be taken hereunder on or by a day that is not a Business Day, then such action may be validly taken on or by the next day that is a Business Day. Relative to the determination of any period of time, “from” means “including and after” “to” means “to but excluding” and “through” means “through and including.”
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(j)
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All accounting terms used herein and not expressly defined herein shall have the meanings given to them under, and all accounting determinations hereunder shall be made in accordance with, GAAP as in effect on the Effective Date.
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(k)
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Each Party acknowledges that this Agreement and each of the other Transaction Documents was negotiated by it with the benefit of representation by legal counsel, and any rule of construction or interpretation otherwise requiring this Agreement or any of the other Transaction Documents to which such Party is a party to be construed or interpreted against any Party shall not apply to any construction or interpretation thereof.
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(l)
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In the event of any conflict between the provisions of this Agreement and those of any Exhibit, Schedule or Appendix, the provisions of this Agreement shall prevail.
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(a)
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the Base Purchase Price; plus or minus, as applicable,
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(b)
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the adjustment to reflect the Final Aggregate Net Working Capital Amount in accordance with
Section 2.4
; plus or minus, as applicable,
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(c)
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the adjustment to reflect the Jericho Completion Adjustment Amount in accordance with
Section 2.5
.
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2.4
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Aggregate Net Working Capital Adjustment Amount.
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(a)
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At least five (5) Business Days prior to the scheduled Closing Date, Seller will prepare (at Seller’s expense) and deliver to Buyer a worksheet setting forth the Estimated Aggregate Net Working Capital Amount, as well as a computation thereof (which computation shall be prepared in the same format and on the same basis used to prepare the Aggregate Target Net Working Capital Amount as set forth on
Exhibit A
). The “
Closing Date Aggregate Net Working Capital Adjustment Amount
” shall be the amount (positive or negative) equal to the Estimated Aggregate Net Working Capital Amount minus the Aggregate Target Net Working Capital Amount. If (i) the Closing Date Aggregate Net Working Capital Adjustment Amount is a positive number, the Base Purchase Price payable at Closing will be increased by an amount equal to the Closing Date Aggregate Net Working Capital Adjustment Amount; or (ii) the Closing Date Aggregate Net Working Capital Adjustment Amount is a negative number, the Base Purchase Price payable at Closing will be decreased by an amount equal to the absolute value of the Closing Date Aggregate Net Working Capital Adjustment Amount.
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(b)
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Within sixty (60) days after the Closing Date, Buyer will prepare (at Buyer’s expense) and deliver to Seller a worksheet setting forth Buyer’s good faith computation of the Proposed Aggregate Net Working Capital Amount, which computation shall be prepared in the same format and on the same basis used to prepare the Aggregate Target Net Working Capital Amount as set forth on
Exhibit A
, together with documentation that supports Buyer's determinations and calculations. If within forty-five (45) days following delivery of such worksheet and supporting documentation to Seller, Seller does not object in writing thereto to Buyer, then the Proposed Aggregate Net Working Capital Amount shall constitute the actual amount of the Aggregate Net Working Capital as of the Closing Date for purposes of this Agreement (the “
Final Aggregate Net Working Capital Amount
”). If, within forty-five (45) days following delivery of such worksheet and supporting documentation to Seller, Seller objects in writing thereto to Buyer (describing in reasonable detail the specific line items and values that are in dispute and the reasons for such dispute, and proposing alternative values with respect to such specific line items) such Proposed Aggregate Net Working Capital
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(c)
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If the Proposed Aggregate Net Working Capital Amount is not prepared and delivered by Buyer within the sixty (60) day period set forth in
Section 2.4(b)
above, Seller shall be entitled (but not obligated) during the forty-five (45) day period commencing on the sixty-first (61st) day after the Closing Date to prepare (at Seller’s expense) and deliver to Buyer a worksheet setting forth Seller’s good faith computation of the Proposed Aggregate Net Working Capital Amount, which computation shall be prepared in the same format and on the same basis used to prepare the Aggregate Target Net Working Capital Amount as set forth on
Exhibit A
, and based upon information available to Seller, and accompanied by the documentation that supports Seller’s determinations and calculations. If within forty-five (45) days following delivery of such worksheet and supporting documentation to Buyer, Buyer does not object in writing thereto to Seller, then the Proposed Aggregate Net Working Capital Amount submitted by Seller pursuant to this
Section 2.4(c)
shall constitute the Final Aggregate Net Working Capital Amount. If, within forty-five (45) days following delivery of such worksheet and supporting documentation to Buyer, Buyer objects in writing thereto to Seller (describing in reasonable detail the specific line items and values that are in dispute and the reasons for such dispute, and proposing alternative values with respect to such specific line items), such Proposed Aggregate Net Working Capital Amount shall be subject to the objection and resolution provisions set forth in
Section 2.4(e)
below.
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(d)
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If neither Buyer nor Seller prepare and deliver a Proposed Aggregate Net Working Capital Amount in accordance with
Section 2.4(b)
or
Section 2.4(c)
, above, the Estimated Aggregate Net Working Capital Amount delivered at Closing shall become the Final Aggregate Net Working Capital Amount for all purposes hereunder.
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(e)
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If Seller objects to Buyer’s Proposed Aggregate Net Working Capital Amount pursuant to
Section 2.4(b)
or if Buyer objects to Seller’s Proposed Aggregate Net Working Capital Amount pursuant to
Section 2.4(c)
, then Buyer and Seller shall negotiate in good faith and attempt to resolve the particular items and values that are identified in the applicable written notice of objection over a twenty (20) day period commencing on delivery of written notice of objection pursuant to
Section 2.4(b)
or
Section 2.4(c)
, as the case may be. Should such negotiations not result in an agreement as to the Final Aggregate Net Working Capital Amount within such twenty (20) day period (or such longer period as Buyer and Seller may agree in writing), then either Party may, within ten (10) days following the expiration of such twenty (20) day period, submit such remaining disputed items and values to the Neutral Auditor. If neither Party submits such remaining disputed items and values to the Neutral Auditor in accordance with the foregoing sentence, then the Proposed Aggregate Net Working Capital Amount prepared by Buyer or Seller, as applicable, in accordance with
Section 2.4(b)
or
Section 2.4(c)
shall become the Final Aggregate Net Working Capital Amount for all purposes hereunder. Each Party agrees to promptly execute a reasonable engagement letter, if requested to do so by the Neutral Auditor. Buyer and Seller shall, and shall cause their respective Affiliates and their respective Representatives to, use Commercially Reasonable Efforts to cooperate with the Neutral Auditor. The
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(f)
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The “
Final Aggregate Net Working Capital Adjustment Amount
” shall be calculated by computing the Closing Date Aggregate Net Working Capital Adjustment Amount in accordance with
Section 2.4(a)
but substituting the Final Aggregate Net Working Capital Amount for the Estimated Aggregate Net Working Capital Amount. The “
Post-Closing Aggregate Net Working Capital Adjustment Amount
” shall be the amount (positive or negative) equal to (i) the Final Aggregate Net Working Capital Adjustment Amount minus (ii) the Closing Date Aggregate Net Working Capital Adjustment Amount. If the Post-Closing Aggregate Net Working Capital Adjustment Amount is a positive amount, then Buyer shall pay in cash to Seller the amount of the Post-Closing Aggregate Net Working Capital Adjustment Amount. If the Post-Closing Aggregate Net Working Capital Adjustment Amount is a negative amount, then Seller shall pay in cash to Buyer the amount equal to the absolute value of the Post-Closing Aggregate Net Working Capital Adjustment Amount. Any such net excess or deficit payment in respect of the Final Aggregate Net Working Capital Amount will be due and payable within fifteen (15) days after the date that the Final Aggregate Net Working Capital Amount is finally determined as provided in this
Section 2.4
and will be payable by wire transfer of immediately available funds to such account or accounts as shall be specified by Buyer or Seller, as applicable at least two (2) Business Days prior to the payment date. Any payments made pursuant to this
Section 2.4(f)
shall be treated as an adjustment to the Purchase Price by the parties, unless otherwise required by Law.
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(g)
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Following the Closing, Seller and Buyer shall cooperate and provide each other and, if applicable, the Neutral Auditor, and their respective Representatives, reasonable assistance and access to such books, records and employees (including those of the Acquired Companies) to the extent they relate to the Final Aggregate Net Working Capital Adjustment Amount as are reasonably requested in connection with the matters addressed in this
Section 2.4
. Consistent with the foregoing, Buyer shall, at its expense, provide to Seller or the Neutral Auditor, or provide reasonable access (in a manner not unreasonably disruptive to its business) to Seller or the Neutral Auditor to review, the books and records, documents and work papers to the extent related to the preparation of the worksheet and computation of the Final Aggregate Net Working Capital Amount. Seller and the Neutral Auditor shall be entitled to make reasonable inquiries and information requests of Buyer regarding the worksheet setting forth the computation of the Final Aggregate Net Working Capital Amount and the calculations set forth therein.
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2.5
|
Jericho Completion Adjustment Amount.
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(a)
|
Promptly following the final determination by Seller and NextEra Energy Canada, LP of the Jericho Completion Adjustment Amount pursuant to Section 3(g) of Part III of the Jericho PSA Acquired Companies Annex, Seller will deliver a certificate to Buyer (i) certifying that (a) all of the “Completion Requirements” (as defined in the Jericho PSA Acquired Companies Annex) have been completed and (b) all “Completion Costs” (as defined in the Jericho PSA Acquired Companies Annex) have been paid in full, (ii) certifying the amount of the “Completion Costs”, (iii) confirming the amount of the Jericho Completion Adjustment Amount and (iv) confirming whether the Jericho Completion Adjustment Amount is a Jericho Additional Completion Payment or a Jericho Completion Payment Surplus. The amount of the Jericho Completion Adjustment Amount will be subject to the review and approval of Buyer, acting reasonably. Seller shall provide to Buyer all information reasonably requested by Buyer in connection with the Buyer’s review and approval of the Jericho Completion Adjustment Amount, including information relating to the “Completion Costs” and the “Completion Requirements”.
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(b)
|
If the Jericho Completion Adjustment Amount is a Jericho Completion Payment Surplus, then Buyer shall pay in cash to Seller the amount of the Jericho Completion Adjustment Amount. If the Jericho Completion Adjustment Amount is a Jericho Additional Completion Payment, then Seller shall pay in cash to Buyer the amount of the Jericho Completion Adjustment Amount. Any such payment in respect of the Jericho Completion Adjustment Amount will be due and payable within fifteen (15) days after the date on which Buyer approves the Jericho Completion Adjustment Amount and will be payable by wire transfer of immediately available funds to such account or accounts as shall be specified by Buyer or Seller, as applicable, at least two (2) Business Days prior to the payment date.
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3.1
|
Organization.
|
(a)
|
Seller is a limited partnership, duly formed, validly existing and in good standing under the Laws of its jurisdiction of formation.
|
(b)
|
Seller GP is a limited liability company, duly formed, validly existing and in good standing under the Laws of its jurisdiction of formation.
|
(a)
|
result in a violation or breach of any of the terms, conditions or provisions of the Organizational Documents of Seller or the Shared Facilities Affiliates;
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(b)
|
assuming all of the Seller Consents, the Company Consents and the Shared Facilities Consents have been made, obtained or given and the Shared Facilities Agreements and the Common O&M Facilities Agreements have been executed and delivered, result in a violation of or a breach of or default (or give rise to any right of termination, cancellation or acceleration) under (with or without the giving of notice, the lapse of time, or both) any material Contract to which Seller or any Shared Facilities Affiliate is a party, except for any such violations or defaults (or rights of termination, cancellation or acceleration) that would not, in the aggregate, have a material adverse effect on Seller’s or any Shared Facilities Affiliate’s ability to perform its obligations under this Agreement or any of the other Transaction Documents to which such Persons are or will be a party; and
|
(c)
|
assuming all of the Seller Consents, the Company Consents and the Shared Facilities Consents have been made, obtained or given, (i) result in a violation or breach of any term or provision of any Law applicable to Seller or the Shared Facilities Affiliates, except as would not have a material adverse effect on Seller’s or any Shared Facilities Affiliate’s ability to perform its obligations under this Agreement or any other Transaction Document to which such Persons are a party or (ii) require any Consent of any Governmental Authority under any Law, other than such Consents that, if not made, obtained or given, would not have a material adverse effect on Seller’s or such Shared Facilities Affiliate’s ability to perform its obligations under this Agreement or any of the other Transaction Documents to which such Persons are or will be a party.
|
4.1
|
Organization.
|
(a)
|
The Company is a unlimited liability company duly formed, validly existing and in good standing under the Laws of its jurisdiction of continuation, and has all requisite unlimited liability company power and authority to conduct its business as it
is now being conducted and to own, lease and operate its Assets.
|
(b)
|
Each of the Project LPs is a limited partnership duly formed, validly existing and in good standing under the Laws of its jurisdiction of formation, and has all requisite limited partnership power and authority to conduct its business as it is now being conducted and to own, lease and operate its Assets.
|
(c)
|
Each of the other Acquired Companies is duly formed, validly existing and in good standing under the Laws of its jurisdiction of formation, and has all requisite power and authority to conduct its business as it is now being conducted and to own, lease and operate its Assets.
|
(d)
|
Each Acquired Company is duly qualified or licensed to do business in each jurisdiction in which the ownership or operation of its Assets make such
|
(e)
|
Each Acquired Company has all requisite limited partnership or corporate power and authority, as applicable, to execute and deliver the Transaction Documents to which each Acquired Company is a party, to perform its obligations thereunder and to consummate the transactions contemplated thereby. The execution and delivery by each Acquired Company of the Transaction Documents to which each Acquired Company is a party, and the performance by each Acquired Company of its obligations thereunder, have been duly and validly authorized by all necessary limited partnership or corporate action. The Transaction Documents to which each Acquired Company will at Closing be duly and validly executed and delivered by each Acquired Company and, assuming the due execution and delivery by the other parties thereto, constitute the legal, valid and binding obligations of each Acquired Company in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, arrangement, moratorium or other similar Laws relating to or affecting the rights of creditors generally, or by general equitable principles.
|
(a)
|
result in a violation or breach of any of the terms, conditions or provisions of the Organizational Documents of any Acquired Company;
|
(b)
|
assuming all of the Seller Consents, the Company Consents and the Shared Facilities Consents have been made, obtained or given and the Shared Facilities Agreements and the Common O&M Facilities Agreements have been executed and delivered, result in a material violation of or a material breach of or material default (or give rise to any right of termination, cancellation or acceleration) under any Material Contract, except for any such violations or defaults (or rights of termination, cancellation or acceleration) that would result solely as a result of the specific legal, regulatory or financial status of Buyer or its Affiliates, or as a result of any other facts or circumstances that specifically relate to the business or activities in which Buyer or its Affiliates are or propose to be engaged, other than the Business; and
|
(c)
|
assuming all the Seller Consents, the Company Consents and the Shared Facilities Consents have been made, obtained or given, (i) result in a material violation or material breach of any term or provision of any Law applicable to any Acquired Company or any of the Purchased Assets or (ii) require the Consent of any Governmental Authority under any Law, other than such Consents that, (A) if not made, obtained or given, would not be material or (B) are required solely as a result of the specific legal, regulatory or financial status of Buyer or its Affiliates, or as a result of any other facts or circumstances that specifically relate to the business or activities in which Buyer or its Affiliates are or propose to be engaged, other than the Business.
|
4.6
|
Title to Assets.
|
(a)
|
Except (i)
for the matters disclosed in
Schedule 4.6
and (ii) as would not, individually or in the aggregate, reasonably be expected to be material, the Purchased Assets owned, leased, subject to an easement or licensed by each Acquired Company and the Purchased Assets that each Project LP otherwise has the right to use, either directly or through the O&M Agreement, are sufficient for the ownership, lease, maintenance, financing and operation of the Business after the Closing in substantially the same manner as conducted before the Closing and constitute all of the rights, property and assets necessary to own, lease, finance and operate the Business as currently conducted.
|
(b)
|
The Acquired Companies have good and marketable title to the Assets they purport to own, free and clear of any Encumbrances (other than Permitted Encumbrances) and have valid leases, licenses, easements or other rights to use the other Assets used in the operation of the Business as currently operated, except for matters that would not, individually or in the aggregate, reasonably be expected to be material.
|
(c)
|
Except for such exceptions as would not, individually or in the aggregate, reasonably be expected to be material or as set forth on
Schedule 4.6
, (i) all of the Purchased Assets (other than Purchased Assets that are intangible Assets, including Contracts and Intellectual Property) are in good operating condition for similar Assets of a similar age subject to ordinary wear and tear and ordinary repair and routine maintenance and are suitable for the purposes for which they are employed, and (ii) there is no defect, damage, hazard or dangerous condition existing with respect to any such Purchased Asset.
|
(d)
|
Except as disclosed in
Schedule 4.6
, there are no options, rights, commitments, agreements or contracts to sell, assign, transfer, mortgage, convey or otherwise dispose of any of the Purchased Assets (other than sales of electricity in the ordinary course of business pursuant to the Power Purchase Agreements) or any interest therein or that would restrict or impede the ability of the Acquired Companies to, directly or indirectly, sell, transfer or convey the Assets or any interest therein. Except as disclosed in
Schedule 4.6
, none of the Acquired Companies is party to or bound by any oral contract or any other legally binding oral agreement.
|
(e)
|
Neither the “Bornish Wind Project” nor the “Cedar Point II Wind Project” is a “New NextEra Project” for purposes of the Jericho Credit Agreement. The “Goshen Wind Project” is not a “New NextEra Project” for purposes of the credit agreement dated as of June 13, 2014 between,
inter alios
, Varna Wind, LP, as borrower, Sumitomo Mitsui Banking Corporation, as administrative agent, Sumitomo Mitsui Banking Corporation of Canada, as collateral agent and depositary agent, and the financial institutions parties thereto.
|
(f)
|
Prior to the Effective Date, an Affiliate of Seller deposited the “Completion Amount” (as defined in the Jericho PSA Acquired Companies Annex) with Jericho Wind, LP. Such deposited amount is not less than the amount required to satisfy all of the “Completion Requirements” (as defined in the Jericho PSA Acquired Companies Annex).
|
(g)
|
There is no transaction contemplated by Section 5.15(a) of the Jericho Credit Agreement that has not been fully unwound prior to the Effective Date. Jericho Wind, LP has no obligation to pay or prepay any loan or other obligation under Section 6.3(h) of the Jericho Credit Agreement.
|
4.14
|
Contracts.
|
(a)
|
Excluding the Excluded Contracts, the Excluded Items, the NEP Revolver Loan Documents and any Contracts entered into after the Effective Date in accordance with
Section 6.4
,
Schedule 4.14
sets forth a true and accurate list of the following Contracts to which an Acquired Company is a party or by which the Acquired Companies may be bound:
|
(i)
|
Contracts for the future purchase, exchange or sale of electric energy or ancillary services;
|
(ii)
|
Contracts for the future transmission of electric power;
|
(iii)
|
Contracts for the interconnection of electric generation facilities to third party transmission or distribution facilities;
|
(iv)
|
other than Contracts of the nature addressed by
Section 4.14(a)(i)
through
(iii)
and Contracts in respect of which there remain no continuing material rights or ongoing financial or other material obligations (including any obligation to purchase or sell any Asset), (A) for the purchase, lease,
|
(v)
|
other than Contracts of the nature addressed by
Section 4.14(a)(i)
through
(iii)
, Contracts involving remaining outstanding payments or receipts that are payable or receivable following Closing and are in excess of $1,000,000
for each individual Contract over the life of such Contract;
|
(vi)
|
Contracts under which it has created, incurred, assumed or guaranteed any outstanding Indebtedness, or under which it has imposed a security interest on any of its Assets, tangible or intangible, which security interest secures outstanding Indebtedness;
|
(vii)
|
outstanding agreements of guaranty, surety or indemnification (excluding indemnification provisions customarily included in Contracts entered into in the ordinary course of business), direct or indirect, by such Acquired Company;
|
(viii)
|
Contracts for consulting services providing annual compensation in excess of $250,000 and that are not cancelable without material penalty by such Acquired Company on notice of ninety (90) days or less;
|
(ix)
|
outstanding futures, swap, collar, put, call, floor, cap, option or other Contracts that have underlying value and payment liability driven by or tied to fluctuations in the price of commodities, including electric power or securities;
|
(x)
|
Contracts that contain any outstanding obligation of an Acquired Company to issue any equity or dispose or acquire (including by equity swap) any equity in any Person, including in each case any securities convertible into or that entitles the holder thereof to acquire any entity;
|
(xi)
|
Contracts that purport to limit such Acquired Company’s (or that would, following the Closing, purport to limit Buyer’s or any of its Affiliates’) freedom to compete in any line of business or in any geographic area;
|
(xii)
|
partnership, joint venture or limited liability company agreements (other than the Organizational Documents of the Acquired Companies);
|
(xiii)
|
any Project Financing Documents; and
|
(xiv)
|
any Material Project Documents.
|
(b)
|
Seller has Made Available true and accurate copies of (i) all Material Contracts (other than certain Material Contracts where there are no outstanding financial or other material obligations thereunder), (ii) the New NextEra Energy Resources Project Adverse Effect Agreement dated as of November 18, 2014 between NextEra Energy Resources, LLC, Bornish Wind, LP and Mizuho Bank, Ltd.,
|
(c)
|
Each of the Material Contracts is in full force and effect and constitutes a legal, valid and binding obligation of the Acquired Companies, Seller or Seller’s Affiliates party thereto and, to Seller’s Knowledge, of the other parties thereto, enforceable against the parties thereto in accordance with its terms.
|
(d)
|
(i) No Acquired Company, Seller or Seller’s Affiliate is in, or has received notice of any, breach or default (whether actual or alleged) in any material respect under any, or has provided or received any written notice of intention to terminate any, Material Contract, (ii) to Seller’s Knowledge, no other party to any of the Material Contracts is in, or has received notice of any, breach or default (whether actual or alleged) in any material respect under any, or provided or received any written notice of intention to terminate any, Material Contract, and (iii) to Seller’s Knowledge, there exists no state of facts that after notice or the passage of time, or both, would constitute such breach or default.
|
4.15
|
Real Property.
|
(a)
|
Each Acquired Company owns, leases or holds an easement interest, license or permit to use the Property listed on
Schedule 4.15
and identified as being owned, held, leased or licensed by such Acquired Company, or over which the identified Acquired Companies holds an easement or permit, in each case, free and clear of all Encumbrances (except for Permitted Encumbrances and the Contracts listed, and as otherwise noted, on
Schedule 4.15
) (all such Contracts listed or noted in
Schedule 4.15
to be referred to herein as “
Real Property Contracts
”). Except as set forth in
Schedule 4.15
, the Projects are constructed within the boundaries of the Property.
|
(b)
|
Except in the case of option agreements and other similar agreements that have been Made Available in folders 2.6.2.5, 2.6.3.9 and 2.6.4.2.5 in the Data Room, no Acquired Company is a party to, or under any Contract to become a party to, any lease, easement, licence or other agreement with respect to real property other than the Real Property Contracts. Except as disclosed in
Schedule 4.15
, no Acquired Company is a sublessor, assignor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any real property.
|
(c)
|
To Seller’s Knowledge, each of the Real Property Contracts is in full force and effect, and there are no outstanding or alleged material defaults, breaches, offsets or counterclaims thereunder on the part of any Acquired Company. To Seller’s Knowledge, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute a material default or breach under the Real Property Contracts on the part of any Acquired Company.
|
(d)
|
To Seller’s Knowledge, each of the Real Property Contracts is binding and enforceable on the applicable Acquired Company that is party thereto, subject only to any limitation under Laws relating to (i) bankruptcy, winding-up, insolvency, arrangement and other Laws of general application affecting the enforcement of creditors’ rights and (ii) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction.
|
(e)
|
No Acquired Company has exercised any right to terminate any of the Real Property Contracts or received any notice in writing to terminate any of the Real Property Contracts, and no such terminations are pending or, to Seller’s Knowledge, threatened.
|
(f)
|
There are no restrictions in any Real Property Contract that prevent any portion of the Property which is material to the operation of the subject Project as currently constructed and operated from being used by the Acquired Companies and the use or occupancy by the grantee or lessee, as applicable, under each Real Property Contract is not, to Seller’s Knowledge, in breach, violation or non-compliance of or with any Laws.
|
(g)
|
No Acquired Company is aware of or has received written notice that any of its Property or any part thereof is subject to any decree of or order by a Governmental Authority to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor has, to Seller’s Knowledge, any such condemnation, expropriation or taking been proposed.
|
(h)
|
No written notice has been received by an Acquired Company from any Governmental Authority with respect to any actual or threatened complaint, Claim, citation, order, directive, request for information, or notice of investigation concerning (i) any alleged violation of, liability or potential liability with respect to any of the Property under any Laws, or (ii) any defect or deficiency in any of the Property or any requirement to repair, remediate, alter or make improvements to any of such Property, that in either case has not been complied with or cured to the satisfaction of such Governmental Authority or which remains outstanding and unresolved.
|
(i)
|
No material capital improvements or construction work is ongoing at any of the Properties and all accounts for work and services performed or materials placed or furnished upon or in respect of construction relating to any Property or any part thereof (which work and services are the responsibility of an Acquired Company) will have been fully paid or adjusted by the Closing Date.
|
(j)
|
True, correct and complete copies of the Real Property Contracts (and all amendments, extensions or additions thereto), owner’s title insurance policies, site plans and surveys relating to Property and in the possession of Seller or the Acquired Companies have been Made Available to Buyer.
|
4.16
|
Permits.
|
(a)
|
Except with respect to Permits under Environmental Law, which are exclusively addressed in
Section 4.17
,
Schedule 4.16
sets forth all Permits held by any of the
|
(b)
|
Each Acquired Company or NECOS, as applicable, is in compliance in all material respects with all Material Permits set forth on
Schedule 4.16
as being held by such Acquired Company or NECOS. Neither Seller, any Acquired Company nor NECOS has (i) received any notification from any Governmental Authority alleging that any Acquired Company or NECOS is in material violation of any of such Material Permits, other than in respect of any allegation that no longer remains pending or (ii) Knowledge of any facts or circumstances that could reasonably be expected to give rise to the revocation, termination, suspension or adverse modification of any such Material Permits.
|
4.17
|
Environmental Matters.
|
(a)
|
The Material Permits include all Permits under Environmental Law that are required for the ownership, lease, use, operation or maintenance of the Projects by the Acquired Companies in the manner in which they are currently owned and operated and consistent with each Project’s design capacity, except any such Permits, the absence of which would not, individually or in the aggregate, be material to the relevant Project. All Material Permits under Environmental Law in effect are set forth on
Schedule 4.17(a)
and are in full force and effect. There are no complaints, Claims, actions, investigations, prosecutions, orders, requests for information or proceedings pending or, to Seller’s Knowledge, threatened that would reasonably be expected to result in the revocation, suspension or adverse modification of any such Material Permits. Correct and complete copies of all Material Permits required under Environmental Law have been Made Available to Buyer.
|
(b)
|
Except as set forth on
Schedule 4.17(b)
, (i) each Acquired Company and the Project owned by each such Acquired Company is and, since December 31, 2016, has been in compliance in all material respects with all Environmental Laws and Material Permits under Environmental Law and (ii) to Seller’s Knowledge, there are no existing events, conditions, circumstances, complaints, actions, investigations, requests for information or proceedings that would reasonably be expected to materially and adversely affect the Acquired Companies by (a) affecting any of their ability to comply with Environmental Laws or Material Permits, (b) resulting in any material liability or obligation under Environmental
|
(c)
|
Except as set forth on
Schedule 4.17(c)
, no Acquired Company has been served with notice of any material Environmental Claims, actions, proceedings or investigations that are currently outstanding. To Seller’s Knowledge, no material Environmental Claims are threatened against an Acquired Company by any Person under any Environmental Laws.
|
(d)
|
Except as set forth on
Schedule 4.17(d)
, there has been no Release or presence of any Hazardous Material within the last four (4) years at any Projects or any Property, or from any Project or any Property to any other location, in connection with an Acquired Company’s operations at the relevant Project or otherwise that would reasonably be expected to result in an Environmental Claim that would have or would reasonably be expected to result in a Material Adverse Effect.
|
4.18
|
Intellectual Property.
|
(a)
|
The Acquired Companies own, or have the licenses or rights to use for their respective Businesses, all material Intellectual Property (other than the Excluded Contracts and Excluded Items) currently used in their respective Businesses.
|
(b)
|
Neither Seller nor any Acquired Company has received from any Person a Claim in writing or, to Seller’s Knowledge, no Claim has been threatened that any Acquired Company is infringing in any material respect the Intellectual Property of such Person.
|
(c)
|
To Seller’s Knowledge, no Person is currently infringing any of the Intellectual Property owned by or licensed to the Acquired Companies in a manner that would reasonably be expected to be material.
|
4.22
|
Financial Statements.
|
(a)
|
Seller has Made Available to Buyer true and complete copies of:
|
(i)
|
the individual (in the case of Jericho Wind, LP and Varna Wind, LP, respectively) or combined (in the case of Conestogo Wind, LP and
|
(ii)
|
the combined audited financial statements of Moore Solar, LP and Sombra Solar, LP for the financial year 2016, consisting of the balance sheet as of December 31, 2016, and the related audited statement of operations, audited statement of equity and audited statement of cash flows for the twelve-month period ending December 31, 2016;
|
(iii)
|
the individual, combined or consolidated unaudited financial statements of the Acquired Companies (other than the Project LPs) consisting of the balance sheets as of December 31, 2015 and December 31, 2016 and the related unaudited income statements for the twelve-month periods ending December 31, 2015 and December 31, 2016, respectively;
|
(iv)
|
the individual (in the case of Jericho Wind, LP and Varna Wind, LP, respectively) or combined (in the case of (x) Moore Solar, LP and Sombra Solar, LP and (y) Conestogo Wind, LP and Summerhaven Wind, LP) unaudited interim financial statements of the Project LPs for the interim period ending September 30, 2017, consisting of the balance sheet as of September 30, 2017, and the related unaudited statement of operations, unaudited statement of equity and unaudited statement of cash flows for the three, six and nine month periods ending September 30, 2017; and
|
(v)
|
the individual, combined or consolidated unaudited interim financial statements of the Acquired Companies (other than the Project LPs) consisting of the balance sheet as of September 30, 2017 and the related unaudited income statements for the three, six and nine months ending September 30, 2017;
|
(b)
|
Each of the Financial Statements was prepared based on the books and records of the Acquired Companies in accordance with GAAP applied on a consistent basis throughout the period involved and fairly present, in all material respects, the financial position of
the Acquired Companies reflected therein as of the respective dates and the results of operations of the Acquired Companies for the respective periods set forth therein (subject, in the case of the unaudited Financial Statements, to the absence of notes and normal year-end adjustments). The Acquired Companies maintain a standard system of accounting established and administered in accordance with GAAP.
|
(a)
|
sold or otherwise disposed of any fixed or capital assets having a fair market value, individually or in the aggregate, in excess of $250,000;
|
(b)
|
made any capital expenditures, individually or in the aggregate, in excess of $350,000;
|
(c)
|
effected any material change in any accounting methods, principles or practices or any material change in, or adoption of any new and material, tax accounting principle, method of tax accounting or tax election;
|
(d)
|
incurred, assumed or guaranteed any Indebtedness, individually or in the aggregate, in excess of $100,000;
|
(e)
|
created or assumed any Encumbrance (other than any Permitted Encumbrances);
|
(f)
|
made any loan, advance or capital contribution to, or investment in any Person that is not an Acquired Company or Seller;
|
(g)
|
suffered damage, destruction or other casualty loss not covered by insurance or warranty that materially affects the business of the Acquired Companies on an aggregate basis; or
|
(h)
|
authorized or agreed or otherwise become committed to do any of the foregoing.
|
(a)
|
result in a violation or breach of any of the terms, conditions or provisions of the Organizational Documents of Buyer;
|
(b)
|
assuming all of the Buyer Approvals have been made, obtained or given, result in a violation of or a breach of or default (or give rise to any right of termination, cancellation or acceleration) under (with or without the giving of notice, the lapse of time, or both) any material Contract to which Buyer is a party, except for any such violations or defaults (or rights of termination, cancellation or acceleration) that would not, in the aggregate, have a material adverse effect on Buyer’s ability to perform its obligations under this Agreement or any of the other Transaction Documents to which Buyer is or will be a party; and
|
(c)
|
assuming all the Buyer Approvals and other notifications provided in the ordinary course of business have been made, obtained or given, (i) result in a violation or breach of any term or provision of any Law applicable to Buyer except as would not have a material adverse effect on Buyer’s ability to perform its obligations under this Agreement or any other Transaction Document to which Buyer is a party or (ii) require any Consent of any Governmental Authority under any Law, other than such Consents that, if not made, obtained or given, would not have a material adverse effect on Buyer’s ability to perform its obligations under this Agreement or any of the other Transaction Documents to which Buyer is or will be a party.
|
6.1
|
Regulatory and Other Approvals.
During the Interim Period:
|
(a)
|
The Parties will, in order to consummate the transactions contemplated hereby, (i) proceed diligently and in good faith and use all Commercially Reasonable Efforts, as promptly as practicable, to obtain the Seller Consents (in the case of Seller), Company Consents (in the case of Seller), Shared Facilities Consents (in the case of the Seller), Buyer Approvals (in the case of Buyer) and Competition Act Clearance (in the case of the Parties) in form and substance satisfactory to Seller and Buyer, each acting reasonably, and to make or cause to be made all required filings with, and to give or cause to be given all required notices to, the applicable Governmental Authorities and (ii) cooperate in good faith with the applicable Governmental Authorities and provide promptly such other information and communications to such Governmental Authorities or other Persons as such Governmental Authorities or other Persons may reasonably request in connection therewith; provided, however, notwithstanding anything to the contrary in this Agreement except as otherwise contemplated herein, neither Buyer nor Seller shall have any obligation to pay any consideration, other than customary fees imposed by Governmental Authorities, or to offer to grant, or agree to, any financial or other accommodation in order to obtain any of the Seller Consents, Company Consents, Shared Facilities Consents, Buyer Approvals and Competition Act Clearance.
|
(b)
|
The Parties will provide prompt notification to each other when any such approval referred to in
Section 6.1(a)
is obtained, taken, made, given or denied, as applicable, and will advise each other of any material communications with any Governmental Authority or other Person regarding any of the transactions contemplated by this Agreement.
|
(c)
|
In furtherance of the foregoing covenants (and notwithstanding the general Commercially Reasonable Efforts standard in
Section 6.1(a)
above):
|
(i)
|
Neither Party shall, and each Party shall cause its Affiliates not to, take any action that would reasonably be expected to adversely affect or materially delay, impair or impede the approval of any Governmental Authority of any of the aforementioned filings; and
|
(ii)
|
Subject to applicable confidentiality restrictions or restrictions required by Law, Buyer and Seller will notify the other Party promptly upon the receipt of (A) any comments or questions from any officials of any Governmental Authority or other Person in connection with any filings made pursuant to this
Section 6.1
or the transactions contemplated by this Agreement or the other Transaction Documents and (B) any request by any officials of any Governmental Authority for amendments or supplements to any filings made pursuant to any Laws of any Governmental Authority or answers to any questions, or the production of any documents, relating to an investigation or review of the transactions contemplated by this Agreement
|
(iii)
|
Each Party shall promptly take, in order to consummate the transactions contemplated by this Agreement, all Commercially Reasonable Efforts necessary to (A) secure the expiration or termination of any applicable waiting period related to the Competition Act Clearance, (B) obtain Competition Act Clearance, and (C) resolve any objections asserted with respect to the transactions contemplated by this Agreement raised by any Governmental Authority in respect of the Competition Act Clearance and to prevent the entry of any court order and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order that would prevent, prohibit, restrict, or delay the consummation of the transactions contemplated by this Agreement.
|
(a)
|
Buyer shall file as promptly as reasonably practicable, and in any event within ten (10) Business Days after the Effective Date, a submission in support of a request
|
(b)
|
Buyer shall pay the requisite filing fee in connection with obtaining Competition Act Clearance; and
|
(c)
|
Each Party shall provide the other Party with the opportunity to review and comment on all documentation submitted to any Governmental Entity in respect of obtaining Competition Act Clearance.
|
6.3
|
Access of Buyer; Books and Records.
|
(a)
|
During the Interim Period, Seller will provide, and will cause the Acquired Companies to provide, Buyer and its Representatives with reasonable access, upon reasonable prior written notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to the properties, books and records of the Acquired Companies and the appropriate officers and employees of Seller and its Affiliates who have significant responsibility for one or more Acquired Companies, but only to the extent that such access does not unreasonably interfere with the business of Seller and its Affiliates or the Businesses of the Acquired Companies, that such access is reasonably related to the transactions contemplated by this Agreement and the Transaction Documents, and subject to compliance with Seller’s and its applicable Affiliates’ safety and security policies, protocols and requirements and all Laws and Contracts or Permits to which Seller, the Acquired Companies or any of their Affiliates are a party (provided that, where the furnishing of such access would cause Seller, the Acquired Companies or any of their Affiliates to breach a confidentiality obligation, Seller shall use Commercially Reasonable Efforts to have such confidentiality obligations waived with respect to Buyer and its Representatives); provided, however, that Seller shall have the right (i) to have a Representative of Seller present for any permitted Buyer communication with employees or officers of Seller or its Affiliates and (ii) to impose reasonable restrictions and requirements for safety purposes. Buyer shall be entitled, at its sole cost and expense, to have the Property surveyed and to conduct non-invasive physical inspections; provided, however, that Buyer shall not be entitled to collect any air, soil, surface water or ground water samples nor to perform any invasive or destructive environmental or subsurface investigation, including any “Phase II” environmental site assessment or similar work on the Property. Promptly upon completion of any such entry, Buyer shall repair any damage caused by such entry. Any disclosure to Buyer pursuant to the foregoing shall be subject to such disclosure (w) not violating any Laws, (x) not resulting in the waiver of any solicitor-client, work product or similar privilege, (y) not being of confidential information concerning the activities of Seller or its Affiliates (other than the Acquired Companies) that is unrelated to the Acquired Companies, the Business of any Acquired Company or the Projects, or that contains Confidential Information relating to Affiliate services to be terminated or severed pursuant to
Section 6.8
(including Excluded Contracts)
(provided that,
|
(b)
|
During the Interim Period, in no event shall Buyer or any of Buyer’s Affiliates hold any meetings with, or otherwise communicate with, any suppliers, other vendors or customers of any Acquired Company, or any Representatives of any Governmental Authority, regarding any Projects or Acquired Companies without the prior consent of Seller (which consent will not be unreasonably withheld, conditioned or delayed). At any such meeting consented to by Seller, a Representative of Seller shall be entitled to participate therein, provided that the failure of such Representative of Seller to attend such meeting shall not prevent its occurrence.
|
(c)
|
Buyer agrees to indemnify and hold harmless Seller, its Affiliates and their respective Representatives for any and all liabilities, losses, costs or expenses incurred by Seller, its Affiliates or their respective Representatives, or by any of Buyer’s Representatives for any injuries or property damage arising out of the access and other rights under this
Section 6.3
, caused by any of Buyer’s Representatives while present on the Property.
|
(d)
|
At or promptly after the Closing, Seller shall deliver to Buyer all books of account and corporate records, including minute books and Tax Returns, tax records, financial and other books and records of the Acquired Companies or their properties, business, operations or condition (other than any of the foregoing items that relate to Excluded Contracts and Excluded Items) to the extent such information is not in the custody or possession of the Acquired Companies on the Closing Date other than (i) information relating to pre-Closing periods in respect of any Non-Acquired Company Affiliate that is commercially sensitive, trade secret or otherwise confidential, (ii) in the case of claims between the Parties, any information that is subject to any solicitor-client, work product or other privilege or that otherwise would not be required to be provided pursuant to a subpoena or other civil discovery procedure or (iii) books and records that Seller determines cannot practicably be delivered to Buyer, in which case Seller will retain such books and records
for seven (7) years following the Closing Date and provide Buyer with reasonable access, upon reasonable prior written notice (but in no event less than five (5) Business Days’ prior written notice) and during normal business hours, to such books and records. Nothing in this Agreement shall be construed to permit Buyer or any of their agents, employees or representatives to have access to any files, records, contracts or documents of Seller or any Acquired Company relating to the sale of the Purchased Shares or the Projects, including any bids or offers received by Seller or any Affiliates of Seller for the sale of the Purchased Shares or the Projects, it being agreed that all such bids or offers shall be the sole property of Seller.
|
(a)
|
create, permit or allow any Encumbrances (other than Permitted Encumbrances) to be imposed on or against any of the Purchased Assets or create, permit or allow any Encumbrances to be imposed on or against any of the Purchased Shares;
|
(b)
|
enter into, terminate, amend, vary or modify, grant any waiver of any material term under, exercise any material option under, fail to comply in any material respect with, or, except in the ordinary course of business, deliver any notice, certificate or other document or give any consent with respect to, any Material Contract, material Real Property Contract or Contract that would be a Material Contract or material Real Property Contract if entered into;
|
(c)
|
other than (i) accounts payable incurred in the ordinary course of business or (ii) intercompany loans or guarantees solely between any Acquired Companies, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person (it being understood and agreed that customer advances, customer deposits do not create Indebtedness);
|
(d)
|
sell or dispose of any Property or any other Assets of the Acquired Companies, other than (i) sales and dispositions of electricity in the ordinary course of business, or (ii) sales or dispositions of obsolete or surplus Assets or sales and dispositions in connection with the normal repair or replacement of Assets, except in each case in the ordinary course of business and in an amount not exceeding $250,000 in the aggregate;
|
(e)
|
except as may be required to meet the requirements of Laws or GAAP as in effect during the Interim Period, change any accounting method or practice;
|
(f)
|
fail to maintain its existence or consolidate, merge or amalgamate with any other Person;
|
(g)
|
acquire Assets, except (i) major components required in connection with the maintenance of the Projects in the ordinary course of business or (ii) in an amount not exceeding $250,000 in the aggregate in the ordinary course of business;
|
(h)
|
issue, reserve for issuance, pledge or otherwise encumber, redeem, repurchase or sell any Equity Securities;
|
(i)
|
initiate or settle any Claim, other than settlements involving money damages not in excess of $250,000 individually or $1,000,000 in the aggregate;
|
(j)
|
liquidate, dissolve, recapitalize, reorganize or otherwise wind up its business or operations;
|
(k)
|
hire or engage any employee, independent contractor, dependent contractor or other service provider or implement or adopt any Benefit Plan;
|
(l)
|
purchase any securities of any Person, except for short term investments made in the ordinary course of business;
|
(m)
|
enter into, terminate, amend, abandon, modify, waive, let lapse or fail to renew, or fail to materially comply with, any Material Permit;
|
(n)
|
change any annual Tax accounting period, make any material election with respect to Taxes, file any amended Tax Return, enter into any closing agreement, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, surrender any right to claim a Tax refund, offset or other reduction in Tax Liability, make a request for a Tax ruling or enter into any agreement with any Governmental Entity or consent to any extension or waiver of any limitation period applicable to: (i) the assessment or reassessment of Taxes; (ii) the filing of any Tax Return; or (iii) the payment of any Taxes by or in respect of any Acquired Company for any taxable period, or take any action that results in any material increased Tax liability or reduction of any deduction or credit in respect of any Pre-Closing Tax Period (for greater certainty, the claiming of capital cost allowance by any Project LP which has the effect of reducing to nil any taxable income of the Project LP is consistent with past practice and will not be considered to be a reduction of a deduction for the purposes of this
Section 6.4(n))
or any material Tax liability in respect of any Post-Closing Tax Period;
|
(o)
|
enter into any Contract with Seller or any Affiliate of Seller or any Person not at arm’s length with Seller or any of its Affiliates on terms that are less favourable in any material respect than the terms that the Acquired Companies could obtain on an arm’s length basis;
|
(p)
|
engage in any new line of business;
|
(q)
|
amend or modify its Organizational Documents or adopt any new Organization Documents; or
|
(r)
|
agree or commit to do any of the foregoing.
|
(a)
|
Within ten (10) days after the Closing Date, Buyer shall cause the Company to change its name to a name that does not contain any of the Seller Marks.
|
(b)
|
Within sixty (60) days after the Closing Date, Buyer shall provide evidence that is reasonably acceptable to Seller, that Buyer has made all filings required pursuant to paragraph (a) above with, and has provided notice to, all applicable Governmental Authorities and all applicable counterparties to the Material Contracts regarding the sale of the Acquired Companies and the Purchased Assets to Buyer and the new addresses for notice purposes.
|
(c)
|
In the event that Buyer breaches this
Section 6.5
, Seller shall be entitled to specific performance of this
Section 6.5
and to injunctive relief against further violations, as well as any other remedies at law or in equity available to Seller.
|
6.6
|
Support Obligations.
|
(a)
|
Buyer acknowledges that certain of the Non-Acquired Company Affiliates (each, a “
Support Provider
”) have provided credit support to or on behalf of certain Acquired Companies pursuant to certain credit support obligations as set forth on
Schedule 6.6
.
|
(b)
|
At or prior to Closing, Seller shall cause the Collateral Account Guarantees to be released and returned to the applicable Support Provider, and such accounts to which the Collateral Account Guarantees relate shall, to the extent required by the Project Financing Documents or other agreements pursuant to which the Collateral Account Guarantees were provided, be funded by Buyer with cash, a surety bond, a guaranty or a letter of credit in accordance with the terms of the Project Financing Documents or the other agreements pursuant to which the Collateral Account Guarantees were provided.
|
(c)
|
At or prior to Closing, with respect to the Support Obligations, each of the Parties shall use Commercially Reasonable Efforts to effect the full and unconditional release, effective as of the Closing Date, of the Support Providers from such Support Obligations or the return or cancellation of any letter of credit, surety bond, guaranty or other credit support. For purposes of this subsection, in the case of Buyer, such Commercially Reasonable Efforts include:
|
(i)
|
furnishing a letter of credit, from a lending institution that has a Credit Rating at least equal to the lending institution for such existing letter of credit, to replace each existing letter of credit that is a Support Obligation
|
(ii)
|
providing a Buyer guaranty (or Buyer Affiliate guaranty) to replace each existing guaranty that is a Support Obligation containing terms at least equal to the terms of such existing guaranty (other than with respect to the credit rating of the guarantor), provided that if the beneficiary of any existing guaranty does not accept such a replacement guaranty (effective as of the Closing) (A) and the terms of such existing guaranty or of any Contract or Law requiring such existing guaranty to be maintained permit the replacement of such existing guaranty with another form of credit support, Buyer shall offer the beneficiary of such existing guaranty such other form of credit support in order to obtain the release of such existing guaranty or (B) if the terms of such existing guaranty or of any such Contract or Law requiring such existing guaranty to be maintained do not so permit the replacement of such existing guaranty, Buyer shall offer to replace such existing guaranty with a letter of credit or cash in an amount up to the amount of such existing guaranty in substitution therefor; or
|
(iii)
|
replacing any other existing security agreement or arrangement on substantially the same terms and conditions to such existing security agreement or arrangement that is a Support Obligation.
|
(d)
|
During the Interim Period, Buyer shall have the right to contact and have discussions with each beneficiary of a Support Obligation in order to satisfy its obligations under this
Section 6.6
; provided, however, that (i) Buyer shall give Seller not less than five (5) Business Days’ prior written notice before making any such contact and (ii) Seller shall have the right to have Seller’s Representatives present via telephone or in person, as applicable, during any such contact or discussion, provided that Seller’s Representatives’ failure to be present shall not prevent Buyer from contacting and having discussions with such beneficiaries of the Support Obligations. Seller shall provide to Buyer all information in the possession of Seller and its Affiliates reasonably requested by Buyer in connection with the obligations of Buyer under this
Section 6.6
.
|
(e)
|
Prior to the Closing, Seller shall not, and shall cause its Affiliates not to, effect any amendments or modifications or any changes to the Contracts or obligations to which any Support Obligations relate. If, at any time after the Effective Date, any credit support obligation required to be provided to or on behalf of the Acquired
|
6.9
|
Insurance.
|
(a)
|
Seller shall maintain or cause to be maintained in full force and effect insurance coverage consistent with past practice for the Acquired Companies until the Closing. From and after the Closing, all such insurance coverage for the Acquired Companies and the Purchased Assets shall no longer be provided or maintained for any of the Acquired Companies or such Purchased Assets by Seller. Buyer shall be solely responsible for providing insurance to the Acquired Companies for any loss occuring after the Closing. If any claims are actually made prior to the Closing Date under any liability insurance policy for any of the Acquired Companies, then Seller shall cause the applicable Acquired Company to file, give notice and otherwise continue to pursue such claims and recover proceeds under the terms of such policies (but only to the extent such policies otherwise permit such recovery following termination thereof), and Seller will pay over to the applicable Acquired Company any after-Tax amount of proceeds of any insurance recovery under any such policy by Seller and Seller shall remain responsible for any deductible or self-insured retention obligations related thereto. If any casualty loss occurs prior to the Closing that is insured under any property or casualty insurance policy for any of the Acquired Companies and claims associated with such losses, are made after the Closing, then Seller shall cause the applicable Acquired Company to file, give notice and otherwise continue to pursue such claims and recover proceeds under the terms of such policies (but only to the extent such policies otherwise permit such recovery following termination thereof), and Seller will pay over to the applicable Acquired Company any such after-Tax amount of proceeds of any insurance recovery under any such policy by Seller, other than any such after-Tax amount of proceeds that have been or will be applied to repair or replace the property and Seller shall remain responsible for any deductible or self-insured retention obligations related to such claim.
|
(b)
|
Buyer shall (i) use Commercially Reasonable Efforts to obtain Replacement Insurance that complies with all of the requirements set forth in the Material Contracts (including the Project Financing Agreements) and will be effective as of the Closing Date and (ii) provide reasonable evidence to Seller of such Replacement Insurance, in each case, on or prior to the date that is five (5) Business Days prior to the Closing Date. Prior to the Closing, Seller shall, and shall cause the Acquired Companies to, reasonably cooperate with and assist Buyer in connection with the obtainment of such Replacement Insurance.
|
6.10
|
Casualty.
|
(a)
|
If any of the Purchased Assets are damaged or destroyed by casualty loss during the Interim Period, then the Seller shall promptly, and in any event within five (5) Business Days of such casualty loss, engage an Independent Architect (and, if the Seller does not so engage an Independent Architect, then Buyer may engage an Independent Architect) to prepare a report as to the Restoration Costs and rated capacities of such Purchased Assets (an “
Independent Casualty Report
”).
|
(b)
|
Subject to
Section 6.10(c)
, if any of the Purchased Assets are damaged or destroyed during the Interim Period, then Seller, in its sole discretion, within forty-five (45) days after receipt of the applicable Independent Casualty Reports, shall elect by written notice to Buyer to either (i) at its sole cost and expense, complete, or cause to be completed, the restoration, repair or replacement of such Purchased Assets to a condition reasonably comparable to their prior condition or (ii) reduce the amount of the Purchase Price by the aggregate Restoration Cost in respect of such Purchased Assets. Subject to
Section 6.10(c)
, if Seller elects to restore, repair or replace such damaged or destroyed Purchased Assets, then the Seller shall restore, repair or replaced such damaged or destroyed Purchased Assets prior to Closing and the Closing Date shall be postponed for the amount of time reasonably necessary to complete such restoration, repair or replacement (provided that, in no circumstance shall the Outside Date be extended unless consented to in writing by the Buyer). Subject to
Section 9.1(c)
, such casualty loss shall not affect the Closing, except with respect to the Closing Date.
|
(c)
|
Notwithstanding
Section 6.10(b)
, if (i) the aggregate Restoration Cost in respect of all damaged or destroyed Purchased Assets is more than an amount equal to $20,000,000 in the aggregate or (ii) any damage or destruction of the Purchased Assets prevents the generation of electricity by or from Purchased Assets having rated capacities of 10 megawatts or more in the aggregate, in each case as set forth in the Independent Casualty Reports, then Buyer, in its sole discretion, within forty-five (45) days after receipt of the applicable Independent Casualty Reports, may elect by written notice to Seller to either (i) require Seller, at its sole cost and expense, to restore, repair or replace such damaged or destroyed Purchased Assets to a condition reasonably comparable to their prior condition, (ii) reduce the amount of the Purchase Price by such aggregate Restoration Cost or (iii) terminate this Agreement. If Buyer elects to require Seller to restore, repair or replace such damaged or destroyed Purchased Assets, Seller shall complete, or cause to be completed, such restoration, repair or replacement prior to the Closing, and the Closing Date shall be postponed for the amount of time reasonably necessary to complete such restoration, repair or replacement (provided that, in no circumstance shall the Outside Date be extended unless consented to in writing by Buyer). Subject to
Section 9.1(c)
, if Buyer elects to require Seller to restore, repair or replace the damaged or destroyed Purchased Assets or reduce the Purchase Price, such casualty loss shall not affect the Closing, except with respect to the Closing Date. If Buyer does not provide Seller written notice of its election within forty-five (45) days after the date of receipt by the Buyer of the applicable Independent Casualty Reports, Buyer shall be deemed to have elected to terminate this Agreement.
|
(d)
|
For the avoidance of doubt, in the event Seller is required to restore, repair or replace the damaged or destroyed Purchased Assets pursuant to this
Section 6.10
and any of the Acquired Companies following Closing receives any
|
(e)
|
If any Purchased Assets are damaged or destroyed by casualty loss at any time prior to the Closing and the Independent Casualty Report related to such Purchased Assets is not received by the Buyer at least five (5) Business Days prior to the Closing Date, then the Closing Date shall be postponed to a date that is not earlier than five (5) Business Days after the Buyer has received such Independent Casualty Report (provided that, in no circumstance shall the Outside Date be extended unless consented to in writing by Buyer).
|
6.11
|
Condemnation.
|
(a)
|
If any of the Purchased Assets are taken by condemnation during the Interim Period, then the Seller shall promptly, and in any event within five (5) Business Days, engage an Independent Architect (and, if the Seller does not so engage an Independent Architect, then Buyer may engage an Independent Architect) to prepare a report as to the Condemnation Value and rated capacities of such Purchased Assets (an “
Independent Condemnation Report
”).
|
(b)
|
Subject to
Section 6.11(c)
, if any of the Purchased Assets are taken by condemnation during the Interim Period, then Seller, in its sole discretion, within forty-five (45) days after receipt of the applicable Independent Condemnation Reports, shall elect by written notice to Buyer to either (i) at its sole cost and expense, replace, or cause to be replaced, such Purchased Assets with reasonably comparable Assets or (ii) reduce the amount of the Purchase Price by the aggregate Condemnation Value in respect of such Purchased Assets. Subject to
Section 6.11(c)
, if Seller elects to replace such Purchased Assets, then the Seller shall replace such Purchased Assets prior to Closing and the Closing Date shall be postponed for the amount of time reasonably necessary to complete such restoration, repair or replacement (provided that, in no circumstance shall the Outside Date be extended unless consented to in writing by the Buyer). Subject to
Section 9.1(c)
, such casualty loss shall not affect the Closing, except with respect to the Closing Date.
|
(c)
|
Notwithstanding
Section 6.11(b)
, if (i) the aggregate Condemnation Value in respect of all Purchased Assets taken by condemnation is more than an amount equal to $20,000,000 in the aggregate or (ii) Purchased Assets having rated capacities of 10 megawatts or more in the aggregate are taken by condemnation, in each case as set forth in the Independent Condemnation Report, then Buyer, in its sole discretion, within forty-five (45) days after receipt of the applicable Independent Condemnation Reports, may elect by written notice to Seller to either (i) require Seller, at Seller’s sole cost and expense, to replace such Purchased Assets with reasonably comparable Assets, (ii) reduce the amount of the Purchase Price by such aggregate Condemnation Value or (iii) terminate this Agreement. If Buyer elects to require Seller to replace such Purchased Assets,
|
(d)
|
For the avoidance of doubt, in the event Seller is required to replace the Purchased Assets that were taken by condemnation and any of the Acquired Companies following Closing receives any condemnation proceeds with respect to such condemnation event that cover such replacement cost, Seller shall be entitled to be reimbursed by Buyer with such condemnation proceeds actually received (net of any costs and expenses incurred in connection with receiving such proceeds) to the extent of the replacement cost paid by Seller and Buyer shall promptly reimburse Seller from such condemnation proceeds to the extent of the replacement cost paid by Seller.
|
(e)
|
If any condemnation proceeding in respect of any of the Purchased Assets is commenced at any time prior to the Closing and (i) such condemnation proceeding is not finally resolved prior to the Closing or (ii) the Independent Condemnation Report related to such condemnation proceeding is not received by the Buyer, in each case at least five (5) Business Days prior to the Closing Date, then the Closing Date shall be postponed to a date that is not earlier than five (5) Business Days after such condemnation proceeding has been finally resolved and the Buyer has received the Independent Condemnation Report related to such condemnation proceeding (provided that, in no circumstance shall the Outside Date be extended unless consented to in writing by Buyer).
|
6.13
|
Tax Matters.
Except as provided in
Section 6.12
relating to Transfer Taxes:
|
(a)
|
With respect to any Tax Return covering a Pre-Closing Taxable Period that is required to be filed after the Closing Date with respect to any Acquired Company, Seller shall cause such Tax Return to be prepared (in a manner consistent with procedures and practices and accounting methods followed in prior taxable periods, except as required by a change in Law) and shall deliver a substantially final draft of such Tax Return as so prepared to Buyer for review and comment at least thirty (30) Business Days prior to the date on which such Tax Return is
|
(b)
|
With respect to any Tax Return covering a Straddle Taxable Period that is required to be filed after the Closing Date with respect to any Acquired Company, Buyer shall cause such Tax Return to be prepared (in a manner consistent with procedures and practices and accounting methods followed in prior taxable periods, except as required by a change in Law) and shall deliver a substantially final draft of such Tax Return as so prepared to Seller for review and comment at least thirty (30) Business Days prior to the date on which such Tax Return is required to be filed or issued (or, in the case of any Tax Returns that are required to be filed on a monthly basis or if such due date is within forty-five (45) days following the Closing Date, as promptly as practicable). Seller shall be given the opportunity to review, comment upon and suggest changes or corrections to such Tax Returns prior to the filing or issuance thereof, and Buyer shall, reasonably and in good faith, consider any comments or revisions to such Tax Returns as are requested by Seller. Buyer shall cause the applicable Acquired Company to file such Straddle Taxable Period Tax Return on or before the date on which it is required by Law to be filed with the relevant Taxation Authority in (i) the form prepared, if Seller has no comments; (ii) the form agreed to by the Parties, if the Parties have agreed on the form of such Tax Returns; or (iii) the form determined by the Neutral Auditor, if the Parties are unable to agree on the form of such Tax Returns. For the avoidance of doubt, this
Section 6.13(b)
shall not apply to non-Canadian income Tax Returns that report the income and deductions of the Acquired Companies that are required to be filed by a Person that is a direct or indirect owner of the Acquired Companies but is not itself an Acquired Company; such income Tax Returns shall be filed by such Person and shall not be provided to Buyer.
|
(c)
|
In the event of any dispute regarding the matters set forth in
Section 6.13(a)
or
Section 6.13(b)
, each Party shall provide the other Party with written notice thereof within fourteen (14) days of its access to the Pre-Closing Taxable Period Tax Returns or Straddle Taxable Period Tax Returns, as the case may be, and
|
(d)
|
Seller shall be solely responsible for the cost and expense of preparing and filing any Tax Returns relating to any Pre-Closing Taxable Period (other than a Straddle Taxable Period). In the case of any Tax Return for a Straddle Taxable Period, the cost and expense of preparing and filing such Tax Return shall be apportioned between Buyer and Seller in the same manner as the Taxes and any items of income, gain, deduction, loss or credit are allocated pursuant to
Section 6.13(f)
and (g).
|
(e)
|
Seller shall be entitled to all refunds of any Tax (including any interest paid thereon and net of any Taxes incurred in respect of the receipt or accrual of the refund and interest) with respect to an Acquired Company that is attributable to a Pre-Closing Taxable Period in respect of Tax Returns to be filed after the Closing Date to the extent that such refund exceeds the amount (if any) reflected as a current asset for such refund pursuant to the Final Aggregate Net Working Capital Adjustment Amount computation in accordance with
Section 2.4
and excluding any such refund to the extent it arises from the application or carry back to any Pre-Closing Taxable Period of any item of loss, deduction, credit, or other Tax asset or attribute arising in or attributable to any Post-Closing Taxable Period. Within ten (10) Business Days after the receipt of any such refund, if (i) the amount of such refund to which Seller is entitled, exceeds (ii) the amount reflected as a current asset for such refund in such Final Aggregate Net Working Capital Amount, Buyer shall pay to Seller an amount equal to such excess; if the amount described in clause (ii) exceeds the amount described in clause (i), Seller shall pay to Buyer the amount of such excess. Buyer shall, and shall cause the relevant Acquired Company to, take (at the expense of Seller) such action to claim a refund of any Tax of such Acquired Company attributable to a Pre-Closing Taxable Period as is reasonably requested by Seller. Notwithstanding anything in this Agreement to the contrary, in the event that any such refund is subsequently determined by any Taxing Authority to be less than the amount reflected in the payment between the Parties, Seller shall promptly return any such disallowed
|
(f)
|
For Tax purposes, Taxes of the Acquired Companies for a Straddle Taxable Period shall be allocated on the basis that the Straddle Taxable Period consisted of two taxable periods, one that ended immediately before the time of Closing and the other that began at the time of Closing, and such Taxes shall be allocated between two such periods on a “closing of the books basis”; provided, however, that (i) in the case of Property Taxes and franchise Taxes based solely on capital, such Taxes shall be prorated on a daily basis to the portion of the Straddle Taxable Period ending immediately before the time of Closing (and in determining whether a Property Tax is attributable to a Pre-Closing Taxable Period or a Straddle Taxable Period, any Property Tax that is based on the assessed value of any Assets or other rights as of any specified valuation date shall be deemed a Property Tax attributable to the taxable period (whether a fiscal year or other tax period) specified on the relevant Property Tax bill that is issued with respect to that valuation date), (ii) in the case of any franchise Tax paid or payable not based solely on capital with respect to such Acquired Company, such Taxes shall be allocated to the taxable period for which the income, operations, Assets or capital comprising the base of such Tax is measured, regardless of whether the right to do business for another period is obtained by the payment of such Tax, and (iii) in the case of Taxes not described in clause (i) or (ii) above (such as sales, value added, withholding and similar transaction-based Taxes and employment Taxes, Taxes that are based upon or related to income or receipts, based upon occupancy or imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible)), such Taxes shall be allocated to the portion of the Straddle Taxable Period in which the relevant transaction occurred or to which the income, gain, deduction, loss or credit reasonably relates.
|
(g)
|
Notwithstanding anything to the contrary herein, the income, gain, deduction, loss or credit of any Acquired Company that is a member of a partnership or limited liability company at any time during a Pre-Closing Taxable Period shall be deemed to include its proportionate share of any income, gain, deduction, loss or credit of any such partnership or limited liability company for such period (which shall include its proportionate share of any income, gain, deduction, loss or credit of any such partnership or limited liability company for completed tax or fiscal periods of such partnership or limited liability company and shall include its proportionate shares of any income, gain, deduction, loss or credit of any such partnership or limited liability company for the portion of any Straddle Taxable Period ending immediately before the time of Closing as provided in this
Section 6.13(g)
). For Tax purposes, income, gain, deduction, loss or credit of the Acquired Companies that are partnerships or limited liability companies for a Straddle Taxable Period shall be allocated on the basis that the Straddle Taxable Period consisted of two taxable periods, one that ended immediately before the time of Closing and the other that began at the time of Closing, with such income, gain, deduction, loss or credit being allocated between the two taxable periods on a “closing of the books basis” with such income gain, deduction, loss or credit being allocated to the period to which they reasonably relate. Notwithstanding anything to the contrary, (i) this section shall operate iteratively through tiers of partnerships or limited liability companies so that income, gain, deduction, loss or credit of a
|
(h)
|
Buyer shall be entitled to all refunds (including, but not limited to, property tax refunds) and credits of, all Taxes of any Acquired Company other than refunds to which Seller is entitled pursuant to
Section 6.13(e)
.
|
(i)
|
With respect to any Tax for which Seller is responsible or refund to which it is entitled, Seller shall have the right, at its sole cost and expense, to initiate any claim for refund and to control (in the case of a Pre-Closing Taxable Period) or participate in (in the case of a Straddle Taxable Period) the prosecution or settlement of any proceeding involving such Tax or refund, including the determination of the value of property for purposes of real and personal property ad valorem Taxes, provided, however: (A) Seller shall have delivered to Buyer a written agreement that Seller shall be liable for the entire amount of the Taxes covered by or arising out of the Tax contest; (B) for any Pre-Closing Taxable Period, (I) Seller shall pursue such contest diligently and in good faith; (II) Seller shall keep Buyer reasonably informed regarding the status of such Tax contest and Buyer shall be provided copies of any material correspondence relating to such Tax contest; (III) Seller shall consult in good faith with Buyer regarding the defense of such Tax contest and Buyer shall have the right to participate in such Tax contest with separate counsel reasonably acceptable to Seller; and (IV) Seller will provide Buyer a reasonable opportunity to comment on any representations or submissions proposed to be made to a Taxing Authority or Court in respect of such Tax contest and to attend any meeting with any such Taxing Authority or Court with respect to such matters; and (C) Seller (for any Pre-Closing Taxable Period) and Buyer (for any Straddle Taxable Period) shall not, and shall ensure the Acquired Companies do not, settle, resolve or abandon such Tax contest without the prior written consent of Buyer to the extent such action affects a Tax liability of an Acquired Company for a Post-Closing Taxable Period (which consent shall not be unreasonably withheld, conditioned, or delayed), provided, however, that Buyer shall have the right not to consent to the settlement or compromise of any Tax contest related to any matter which may affect the Tax liabilities of the Acquired Companies for a Post-Closing Tax Period, in which case the matter shall be settled by the Neutral Auditor. Buyer shall (and shall cause the relevant Acquired Company to) take such action in connection with any such proceeding as Seller shall reasonably request from time to time to implement the preceding sentence, including the selection of counsel and experts and the execution of powers of attorney. Buyer shall (and shall cause the relevant Acquired Company to) give written notice to Seller of its receipt of any notice of
|
(j)
|
Subject to
Section 6.3
, Seller shall grant to Buyer (or its designees) access at all reasonable times to all of the information, books and records relating to the Acquired Companies within the possession of Seller (including working papers and correspondence with Taxing Authorities) and to the employees of Seller, and shall afford Buyer (or its designees) the right (at Buyer’s expense) to take extracts therefrom and to make copies thereof, to the extent reasonably necessary to permit Buyer (or its designees) to prepare or review Tax Returns, respond to Tax audits and investigations, prosecute Tax protests, appeals and refund claims and to conduct negotiations with Taxing Authorities. The previous sentence shall, under no circumstances, be construed to grant Buyer access to the consolidated United States federal income tax or any consolidated or unitary state Tax Returns that include Seller or any of its Affiliates for any taxable year. Buyer shall grant or cause the Acquired Companies to grant to Seller (or its designees) access at all reasonable times to all of the information, books and records relating to the Acquired Companies within the possession of Buyer (including working papers and correspondence with Taxing Authorities) and to the employees of the Acquired Companies, and shall afford Seller (or its designees) the right (at Seller’s expense) to take extracts therefrom and to make copies thereof, to the extent reasonably necessary to permit Seller (or its designees) to prepare or review Tax Returns, respond to Tax audits and investigations, prosecute Tax protests, appeals and refund claims and to conduct negotiations with Taxing Authorities. After the Closing Date, Seller and Buyer will preserve all information, records or documents in their respective possessions relating to liabilities for Taxes of the Acquired Companies until six (6) months after the expiration of any applicable limitation period (including extensions thereof) with respect to the assessment of such Taxes.
|
(k)
|
Buyer shall be entitled, in its discretion, to make an election under subsection 256(9) of the Tax Act with respect to the tax period of any Acquired Company ending as a result of the transactions contemplated by this Agreement.
|
(l)
|
To the extent that there is an inconsistency between this
Section 6.13
and
Section 10.8
as it relates to any Tax contest, the provisions of this
Section 6.13
shall govern. In particular,
Sections 10.7(c), (d)
(other than first sentence) and
(f)
do not apply in respect of Tax claims.
|
6.16
|
Interim Period Financial Statements
|
(a)
|
Seller shall promptly deliver to Buyer a copy of each of the following financial statements (collectively, the “
Interim Period Financial Statements
”) as soon as such Interim Period Financial Statements are available:
|
(i)
|
the combined audited financial statements of Moore Solar, LP and Sombra Solar, LP for the financial year 2017, consisting of the balance sheets as of December 31, 2017, and the related audited statement of operations, audited statement of equity and audited statement of cash flows for the twelve-month period ending December 31, 2017;
|
(ii)
|
the individual, combined or consolidated unaudited financial statements of the Acquired Companies (other than the Project LPs) consisting of the balance sheets as of December 31, 2017 and the related unaudited income statements for the twelve-month periods ending December 31, 2017;
|
(iii)
|
the individual (in the case of Jericho Wind, LP and Varna Wind, LP, respectively) or combined (in the case of (A) Moore Solar, LP and Sombra Solar, LP and (B) Conestogo Wind, LP and Summerhaven Wind, LP) unaudited interim financial statements of the Project LPs for the interim period ending March 31, 2018, consisting of the balance sheet as of March 31, 2018, and the related unaudited statement of operations, unaudited statement of equity and unaudited statement of cash flows for the three-month period ending March 31, 2018;
|
(iv)
|
the individual, combined or consolidated unaudited interim financial statements of the Acquired Companies (other than the Project LPs) consisting of the balance sheet as of March 31, 2018 and the related unaudited income statement for the three months ending March 31, 2018; and
|
(v)
|
any other reports, financial statements or other documents provided to the lenders or trustees under the Project Financing Documents or provided or received under any operations and maintenance or administrative services agreements.
|
(b)
|
Each of the Interim Period Financial Statements shall be prepared in accordance with GAAP as in effect on the date of such Interim Period Financial Statements and shall fairly present, in all material respects, the financial position of
the
|
6.19
|
Financing Cooperation.
|
(a)
|
Prior to the Closing, Seller shall use Commercially Reasonable Efforts to provide to Buyer, at Buyer’s sole cost and expense, cooperation reasonably requested by Buyer that is necessary in connection with the Debt Financing, including using Commercially Reasonable Efforts to furnish Buyer with the Financial Statements, assist Buyer in the preparation of (A) any bank information memoranda (including the delivery of customary representation letters to the extent required by marketing documents and (B) materials for rating agency presentations, each as required in connection with the Debt Financing, reasonably cooperating with the marketing efforts of Buyer and the Debt Financing Sources to the extent required in connection with the Debt Financing and solely with respect to the Acquired
|
(b)
|
Notwithstanding
Section 6.19(a)
, (i) such requested cooperation shall not unreasonably interfere with the ongoing business and operations of Seller or any of their Affiliates, (ii) none of Seller, any of their respective Affiliates nor any of their respective officers, directors, employees, accountants, consultants, legal counsel, agents, investment bankers and other representatives shall be required to bear any cost or expense, pay any commitment or other fee or incur any other liability or obligation or agree to provide any indemnity in connection with the Debt Financing, (iii) none of Seller or any of its Affiliates or their respective officers, directors or employees shall be required to execute or enter into or perform any agreement, document or instrument, deliver any certificate or opinion or take any corporate or other organizational action (including the adoption of any resolutions) to authorize the execution, entering into or performance of any such agreement, document or instrument, in either case, with respect to the Debt Financing, (iv) such assistance shall not include any actions that Seller reasonably believes would cause any representation, warranty, covenant or other obligation in this Agreement to be breached or any condition to the Closing hereunder to fail to be satisfied, (v) such assistance shall not require the giving of representations or warranties to any third parties or the indemnification thereof, (vi) such assistance shall not require the waiver or amendment of any terms of this Agreement or the payment of any fees or reimbursement of any expenses prior to the Closing for which Seller has not received prior reimbursement or is not otherwise indemnified by Buyer, (vii) such assistance shall not cause any director, officer or employee of Seller to incur any personal liability, (viii) such assistance shall not require delivery of any legal opinions or accountants’ cold comfort letters or reliance letters and (ix) such assistance shall not conflict with or violate any Laws or Seller’s Organizational Documents or result in the contravention of, or that would reasonably be expected to result in the violation or breach of, or a default under, any Contract (including any confidentiality agreement) to which a Seller is a party.
|
(c)
|
To the extent that this
Section 6.19
requires Seller’s cooperation with respect to any of Buyer’s obligations relating to the Debt Financing, the existence of any alternative financing shall not operate to increase Seller’s obligations under this
Section 6.19
for purposes of
Article 7
or
Article 8
of this Agreement if Seller has provided Buyer with the assistance required under this
Section 6.19
with respect to the Debt Financing, in each case without giving effect to any such alternative financing.
|
(d)
|
Notwithstanding anything herein to the contrary, Buyer shall indemnify and hold harmless Seller, Seller’s Affiliates and their respective directors, officers, employees, accountants, consultants, legal counsel, agents, investment bankers and other representatives from and against any and all Losses suffered or incurred by them in connection with the arrangement of the Debt Financing and the performance of their respective obligations under this
Section 6.19
(including any action taken in accordance with this
Section 6.19
) and any information utilized in connection therewith. Buyer shall, promptly upon request by Seller, reimburse Seller for all reasonable out-of-pocket costs and expenses incurred by Seller or its Affiliates in connection with this
Section 6.19
(including those of its accountants, consultants, legal counsel, agents, investment bankers and other representatives).
|
6.22
|
Satisfaction and Discharge of Obligations under the NEP Revolver and Release of Encumbrances.
|
(a)
|
Seller shall (or shall cause the Company and applicable Non-Acquired Company Affiliates to), in accordance with the NEP Revolver Loan Documents, at or prior to
|
(b)
|
Seller shall, and shall cause the Acquired Companies to, and shall use Commercially Reasonable Efforts to cause their respective Representatives to, at or prior to the Closing Date, (i) satisfy and discharge all liabilities and obligations of the Company under the NEP Revolver Loan Documents and (ii) cause the releases of Encumbrances and any collateral of the Company, in each case on terms and conditions reasonably satisfactory to Buyer.
|
(c)
|
Seller shall, and shall cause the Acquired Companies to, at or prior to the Closing Date, cause the release of all of the Encumbrances that are identified in
Schedule 1.1(a)
as an Encumbrance that is to be released on or prior to Closing.
|
7.1
|
Representations and Warranties.
|
(a)
|
The representations and warranties (other than the Seller Fundamental Representations) made by Seller in
Article 3
and
Article 4
(i) shall be true and correct in all respects on the Effective Date and (ii) shall be true and correct in all
|
(b)
|
The Seller Fundamental Representations shall be true and correct in all respects on the Effective Date and on and as of the Closing Date as though made on and as of the Closing Date (except those representations and warranties that address matters only as of a specified date, the truth and correctness of which shall be determined as of that specified date).
|
7.4
|
No Material Adverse Effect.
There shall have not occurred a Material Adverse Effect.
|
7.5
|
Project Financing Documents and Power Purchase Agreements.
|
(a)
|
Each Project Financing Document and Power Purchase Agreement shall be in full force and effect, there shall be no breach or default under any of the Project Financing Documents or any of the Power Purchase Agreements, and no condition, development, fact, effect, circumstance, change or event shall exist that results or would reasonably be expected to result in an event of default under, or termination of, any of the Project Financing Documents or any of the Power Purchase Agreements, or permits or causes or would reasonably be expected to permit or cause the acceleration or other change of any material right or obligation or the loss of any material benefit under any of the Project Financing Documents or any of the Power Purchase Agreements.
|
(b)
|
The distribution conditions under the Project Financing Documents allowing distributions to be made to the borrower or its Affiliates shall be fully satisfied.
|
7.10
|
Competition Act Clearance.
Competition Act Clearance shall have been obtained.
|
7.11
|
Resignations and Releases.
Seller shall have caused:
|
(a)
|
the resignation or removal of all directors and officers, as applicable, of the Acquired Companies, and shall have delivered to Buyer at the Closing evidence of such resignations or removals in the form of
Exhibit H
;
|
(b)
|
each director and officer, as applicable, of the Acquired Companies to grant releases in the form of
Exhibit H
in favour of the Acquired Companies, for all claims and potential claims for the periods prior to Closing; and
|
(c)
|
each Acquired Company to grant a release in the form of
Exhibit H
in favour of the directors and officers, as applicable, of the Acquired Companies, for all claims and potential claims for the period prior to Closing.
|
(a)
|
certificates, instruments or other appropriate documentation representing the Purchased Shares duly endorsed for transfer to Buyer or accompanied by duly
|
(b)
|
a counterpart of each of the Indemnity Agreement, O&M Agreement in the form agreed to by Buyer in accordance with
Section 6.21
, Billing and Metering Services Agreement, and Transition Services Agreement in the form agreed to by Buyer in accordance with
Section 6.21
, in each case executed by each of the parties thereto;
|
(c)
|
the certificate required to be delivered pursuant to
Section 7.3
;
|
(d)
|
a certificate of good standing (or its equivalent) with respect to Seller and each Acquired Company, in each case dated no earlier than five (5) Business Days prior to the Closing Date;
|
(e)
|
a certificate of an officer of Seller GP, substantially in the form attached as
Exhibit J
certifying that (i) attached are true and correct resolutions of Seller GP authorizing the execution, delivery and performance of this Agreement and the other documents to which Seller is a party and the consummation of the transaction contemplated herein, (ii) all such resolutions are in full force and effect and have not been repealed or contravened and (iii) such resolutions constitute all the resolutions adopted in connection with the transactions contemplated herein;
|
(f)
|
a certificate of an officer of Seller GP identifying the name and title and bearing the signatures of such Seller’s Representatives authorized to execute and deliver this Agreement and all other agreements and instruments contemplated hereby;
|
(g)
|
reasonable evidence of the satisfaction and discharge of the liabilities and obligations of the Company in accordance with the NEP Revolver Loan Documents and the release of Encumbrances thereunder as of the Closing; and
|
(h)
|
all other previously undelivered certificates, agreements and other documents required by this Agreement to be delivered by Seller at or prior to the Closing in connection with the transactions contemplated by this Agreement and such other agreements, documents and instruments as Buyer may reasonably request.
|
8.1
|
Representations and Warranties.
|
(a)
|
The representations and warranties (other than the Buyer Fundamental Representations) made by Buyer in
Article 5
shall be true and correct in all material respects on and as of the Closing Date (without regard for any materiality qualification therein) as though made on and as of the Closing Date (except for
|
(b)
|
The Buyer Fundamental Representations shall be true and accurate in all material respects on and as of the Closing Date as though made on and as of the Closing Date (except those representations and warranties that address matters only as of a specified date, the truth and correctness of which shall be determined as of that specified date).
|
8.6
|
Competition Act Clearance.
Competition Act Clearance shall have been obtained.
|
(a)
|
a wire transfer of immediately available funds (to such account or accounts as Seller shall have given notice to Buyer not less than five (5) Business Days prior to the Closing Date) in an amount equal to the Base Purchase Price as increased or decreased by the Closing Date Aggregate Net Working Capital Adjustment Amount in accordance with
Section 2.4(a)
;
|
(b)
|
the certificate required to be delivered pursuant to
Section 8.3
;
|
(c)
|
an executed counterpart of each of the Indemnity Agreement, O&M Agreement in the form agreed to in accordance with
Section 6.21
, Billing and Metering Services Agreement and Transition Services Agreement in the form agreed to in accordance with
Section 6.21
;
|
(d)
|
if requested by the applicable Shared Facilities Lenders pursuant to any Shared Facilities Credit Agreement as a condition precedent to the effectiveness of the applicable Shared Facilities Consent obtained thereunder, an executed counterpart of each requested Project Adverse Effect Joinder Agreement;
|
(e)
|
a certificate of an officer or other duly authorized Representative of Buyer identifying the name and title and bearing the signatures of such Buyer’s Representatives authorized to execute and deliver this Agreement and all other agreements and instruments contemplated hereby; and
|
(f)
|
all other previously undelivered certificates, agreements and other documents required by this Agreement to be delivered by Buyer at or prior to the Closing in connection with the transactions contemplated by this Agreement.
|
(a)
|
at any time before the Closing, by Seller, on the one hand, or Buyer, on the other hand, by written notice to the other Party, in the event that any Law restrains, enjoins or otherwise prohibits or makes illegal the sale of the Purchased Shares pursuant to this Agreement and such Law has become final and non-appealable, it being agreed that the Parties shall promptly appeal any adverse determination that is appealable (and pursue such appeal with reasonable diligence);
|
(b)
|
at any time before the Closing, by Seller, on the one hand, or Buyer, on the other hand, by written notice to the other Party, if such Party is not then in material breach of any of its representations and warranties, covenants or agreement hereunder and the other Party has materially breached any of its representations, warranties, covenants or agreements hereunder, where the effect of such breach would be to cause the conditions to the obligation to consummate the Closing of the terminating Party not to be capable of being satisfied, and such breach (other than a breach of Buyer’s obligation to pay the Purchase Price in accordance with the terms of
Article 2
) has not been cured within thirty (30) days following written notification thereof; provided, however, that if, at the end of such thirty (30) day period, the breaching Party is endeavoring in good faith, and proceeding diligently, to cure such breach, the breaching Party shall have, subject to
subsection (c)
below, an additional ten (10) days in which to effect such cure);
|
(c)
|
at any time before the Closing, by Seller, on the one hand, or Buyer, on the other hand, by written notice to the other Party, on or after the Outside Date; provided, that the right to terminate this Agreement under this
Section 9.1(c)
shall not be available to a Party if such Party is in material breach of any of its covenants or agreements under this Agreement;
|
(d)
|
at any time before the Closing, by Seller, by written notice to Buyer, if all of the conditions to close set forth in
Article 7
have been satisfied (other than such closing conditions that by their nature are to be satisfied at the Closing but subject to the satisfaction of such conditions at Closing) or waived in writing by the applicable Party and, Seller indicates in such written notice that Seller is ready, willing and able to consummate the transactions contemplated hereby (subject to Buyer performing at the Closing) and yet Buyer fails to consummate the transactions contemplated hereby within five (5) Business Days of such written notice;
|
(e)
|
by Buyer to the extent contemplated by
Section 6.10
or
Section 6.11
; or
|
(f)
|
at any time before Closing, by mutual written consent of Buyer and Seller.
|
10.1
|
Indemnification.
|
(a)
|
Subject to the terms and conditions of this
Article 10
, from and after Closing, Seller shall indemnify and hold harmless Buyer, its Affiliates (including, for greater certainty, the Acquired Companies) and their respective officers, directors, employees, agents and representatives (collectively, the “
Buyer Indemnified Parties
”) for, from and against all Losses incurred or suffered by any Buyer Indemnified Party to the extent relating to, resulting from or arising out of:
|
(i)
|
any breach of any representation or warranty of Seller contained in this Agreement (except to the extent of a breach of a representation or warranty resulting in Taxes that are otherwise excluded from the definition of Indemnified Taxes pursuant to clause (b) of the last sentence of the definition of Indemnified Taxes);
|
(ii)
|
any breach of any covenant or agreement of Seller contained in this Agreement (except to the extent of a breach of a covenant or agreement resulting in Taxes that are otherwise excluded from the definition of Indemnified Taxes pursuant to clause (b) of the last sentence of the definition of Indemnified Taxes);
|
(iii)
|
the Voting Agreement, the Right of First Refusal Agreement, any Excluded Item, any Excluded Contract, the Extraction Transactions or the NEP Revolver Loan Documents;
|
(iv)
|
any amounts owing by any Acquired Company under any Secondary Settlement in respect of any period (or portion thereof) prior to the Closing to the extent that such amounts are not included in the Final Aggregate Net Working Capital Amount;
|
(v)
|
any and all Indemnified Taxes;
|
(vi)
|
any and all Taxes imposed as a result of any loss, reduction, disallowance, or unavailability (in whole or in part) of any refund (whether as cash or a credit or offset against Taxes otherwise payable) that was included in the Final Aggregate Net Working Capital Adjustment Amount computation in accordance with Section 2.4; and
|
(vii)
|
any Taxes payable by, or any reduction or elimination of any item of loss, deduction, credit or other Tax asset or attribute of, the Buyer, any Acquired Company or any Subsidiaries or Affiliates thereof in respect of the Extraction Transactions, for greater certainty including, without limitation, any Taxes payable, or any reduction or elimination of any item of loss, deduction, credit or other Tax asset or attribute, that would not have arisen but for such Extraction Transactions.
|
(b)
|
Subject to the terms and conditions of this
Article 10
, from and after Closing, Buyer shall indemnify and hold harmless Seller, its Affiliates and their respective officers, directors, employees, agents and representatives (collectively, the “
Seller Indemnified Parties
”) for, from and against all Losses incurred or suffered by any Seller Indemnified Party to the extent related to, resulting from or arising out of:
|
(i)
|
any breach of any representation or warranty of Buyer contained in this Agreement; and
|
(ii)
|
any breach of any covenant or agreement of Buyer contained in this Agreement.
|
10.2
|
Limitations of Liabili
t
y.
|
(a)
|
Notwithstanding anything in this Agreement to the contrary:
|
(i)
|
the representations and warranties contained in this Agreement shall survive until the date that is eighteen (18) months after the Closing Date, except that (A) the Seller Fundamental Representations and the Buyer Fundamental Representations shall survive indefinitely, (B) the representations and warranties in Section 4.17 shall survive until the date that is four (4) years following the Closing Date, and (C) the representations and warranties in
Sections 3.9
and
4.13
(the “
Tax Representations
”) shall survive until sixty (60) days after the expiration of the applicable statute of limitations (without regard to the filing after Closing of any waiver of any period for the assessment or reassessment of Taxes made without the consent of Seller);
|
(ii)
|
the covenants and agreements in this Agreement that by their nature are required to be performed by or prior to the Closing shall terminate as of the
|
(iii)
|
Seller shall have no liability pursuant to
Section 10.1(a)(i)
until the aggregate amount of all Losses incurred by the Buyer Indemnified Parties that are subject to indemnification pursuant to
Section 10.1(a)(i)
equals or exceeds the Deductible Amount, in which event Seller shall be liable for all such Losses only to the extent they are in excess of the Deductible Amount; provided that this
Section 10.2(a)(iii)
shall not apply to claims pursuant to Section
10.1(a)(i)
in respect of any Seller Fundamental Representation or Tax Representation;
|
(iv)
|
Buyer shall have no liability pursuant to
Section 10.1(b)(i)
until the aggregate amount of all Losses incurred by the Seller Indemnified Parties that are subject to indemnification pursuant to
Section 10.1(b)(i)
equals or exceeds the Deductible Amount, in which event Buyer shall be liable for all such Losses only to the extent they are in excess of the Deductible Amount; provided that this
Section 10.2(a)(iv)
shall not apply to claims pursuant to Section
10.1(b)(i)
in respect of any Buyer Fundamental Representation;
|
(v)
|
Seller shall have no liability pursuant to
Section 10.1(a)(i)
in connection with any single item or group of related items that results in Losses incurred by the Buyer Indemnified Parties that are subject to indemnification pursuant to
Section 10.1(a)(i)
in the aggregate of less than $100,000; provided that this
Section 10.2(a)(v)
shall not apply to claims pursuant to Section
10.1(a)(i)
in respect of any Seller Fundamental Representation or Tax Representation;
|
(vi)
|
Buyer shall have no liability pursuant to
Section 10.1(b)(i)
in connection with any single item or group of related items that results in Losses incurred by the Seller Indemnified Parties that are subject to indemnification pursuant to
Section 10.1(b)(i)
in the aggregate of less than $100,000; provided that this
Section 10.2(a)(vi)
shall not apply to claims pursuant to Section
10.1(b)(i)
in respect of any Buyer Fundamental Representation;
|
(vii)
|
in no event shall Seller’s aggregate liability pursuant to
Section 10.1(a)(i)
,
or Buyer’s liability pursuant to
Section 10.1(b)(i)
, exceed fifteen percent (15%) of the Purchase Price; provided that this
Section 10.2(a)(vii)
shall not apply to claims pursuant to Section
10.1(a)(i)
in respect of any Seller Fundamental Representation or Tax Representation or claims pursuant to Section
10.1(b)(i)
in respect of any Buyer Fundamental Representation; and
|
(viii)
|
in no event shall Seller’s aggregate liability under
Section 10.1(a)
, or Buyer’s liability pursuant to
Section 10.1(b)
, exceed the Base Purchase Price.
|
(b)
|
Notwithstanding the foregoing, if a written claim or written notice is duly given in good faith under this
Article 10
with respect to any representation, warranty, covenant or agreement prior to the expiration of the applicable survival period set forth in
Section 10.2(a)(i)
or
Section 10.2(a)(ii)
, the Claim with respect to such representation, warranty, covenant or agreement shall continue indefinitely until such Claim is finally resolved pursuant to this
Article 10
.
|
(c)
|
If any fact, circumstance or condition forming a basis for a Claim for indemnification under this
Article 10
shall overlap with any fact, circumstance, condition, agreement or event forming the basis of any other claim for indemnification under this
Article 10
or under the Indemnity Agreement, there shall be no duplication in the calculation of the amount of the Losses; provided however, that with respect to any Loss or part of a Loss in respect of which there would, absent this
Section 10.2(c)
, be duplication under this Article 10 and the Indemnity Agreement, the sole remedies of a Party having a claim under both this
Article 10
and the Indemnity Agreement in respect of such Loss or part of such Loss, as the case may be, shall be under the Indemnity Agreement. In addition, neither Seller nor Buyer shall have any liability under this
Article 10
for Losses relating to matters to the extent actually included in the Final Aggregate Net Working Capital Amount (other than the failure to pay amounts (if any) that become due and payable by Seller pursuant to
Section 2.4
) in accordance with the terms of
Section 2.4
.
|
(d)
|
Notwithstanding anything to the contrary in this Agreement, Seller shall have no obligation under this Article 10 for any assessment or reassessment of Tax to the extent arising from the filing after Closing of any amendment of any Tax Return filed by or on behalf of an Acquired Company for any taxation year ending on or before the Closing Date, or any other action taken after Closing by Buyer or any Acquired Company (including a reorganization undertaken after Closing) that has the effect of shifting income, deduction, credit or allowance from one taxable period to another taxable period or between or among the Acquired Companies and another Person and that results in an increase in Taxes for any Pre-Closing Taxable Period, in each case except to the extent the filing of such amendment or the taking of such action is consented to by Seller, which consent is not to be unreasonably withheld, conditioned or delayed.
|
(e)
|
Notwithstanding anything in this Agreement to the contrary, for purposes of the Seller’s indemnification obligations in this Agreement, the representations and warranties of the Seller in this Agreement that are qualified as to “Material Adverse Effect” or to “material” shall be deemed to have been made without any such qualification for purposes of determining (i) whether a breach of any such representation or warranty has occurred and (ii) the amount of any Losses resulting from or arising out of any breach of any such representation or warranty.
|
(f)
|
An indemnifying Party shall not be required to indemnify a Party seeking indemnification to the extent of any Losses that a court of competent jurisdiction or arbitrator shall have determined by final, non-appealable judgment to have
|
10.3
|
Notice; Duty to Mitigate.
|
(a)
|
Each Party shall give written notice to the other Party as soon as practicable after becoming aware of any breach by such other Party of any representation, warranty, covenant, agreement or obligation in this Agreement.
|
(b)
|
Each Person entitled to indemnification pursuant to
Section 10.1
shall use its Commercially Reasonable Efforts to mitigate Losses for which indemnification may be sought pursuant to this
Article 10
upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any indemnification claim pursuant to this
Article 10
, including (i) using its Commercially Reasonable Efforts to secure payment from insurance policies available and existing on the Closing Date that provide coverage with respect to such Losses (an “
Insurance Payment
”) and (ii) using its Commercially Reasonable Efforts to secure reimbursement, indemnity or other payment from any third Person obligated by contract or otherwise to reimburse, indemnify or pay the Person entitled to indemnification pursuant to
Section 10.1
with respect to such Losses (a “
Third Party Payment
” and, together with an Insurance Payment, a “
Mitigation Payment
”). Notwithstanding anything to the contrary contained herein, the recovery by a Person entitled to indemnification pursuant to
Section 10.1
from any Party providing such indemnification shall not relieve the Person entitled to indemnification pursuant to
Section 10.1
of its obligation to mitigate Losses pursuant to Law or this
Section 10.3
.
|
(c)
|
Any amounts payable to a Person entitled to indemnification pursuant to
Section 10.1
with respect to any Losses pursuant to this
Article 10
shall be reduced by the after-Tax amount of the Mitigation Payment, if any, actually received by the Person entitled to indemnification pursuant to
Section 10.1
with respect to such Losses (net of all costs and expenses incurred by such Person in connection with pursuing and recovering such Mitigation Payment). In the event a payment is made to a Person entitled to indemnification pursuant to
Section 10.1
with respect to any Losses and thereafter such Person receives a Mitigation Payment with respect to such Losses, such Person shall reimburse the Party providing such indemnification an amount equal to the lesser of (i) the after-Tax amount of the Mitigation Payment (net of all costs and expenses incurred by such Person in connection with pursuing and recovering such Mitigation Payment) and (ii) the amount so paid by the Party providing such indemnification.
|
(d)
|
In addition to any other limitations on indemnification that may apply, with respect to any claim for indemnification that any of the Buyer Indemnified Parties may assert regarding Environmental Laws or Hazardous Material, Seller shall not have any obligation with respect to such claim to the extent the Losses for which indemnification are sought (i) arise out of a breach of obligations under this
Section 10.3
, (ii) arise out of any action to meet a cleanup or remedial standard under Environmental Law that is more stringent or costly than the standard applicable as of the Closing Date for the continued use of the relevant property or facility as it was used as of the Closing Date or (iii) are ordinary costs of any post-
|
(e)
|
The amount of any Taxes for which indemnification is provided under this Agreement shall be computed without regard to (and any duty to mitigate shall not require the use of) any item of loss, deduction, credit or other Tax asset or attribute of, the Buyer or any Subsidiaries or Affiliates (other than the Acquired Companies) for any period or any item of loss, deduction, credit or other Tax asset or attribute of any Acquired Company or any Subsidiaries or Affiliates attributable to any Post-Closing Taxable Period and not attributable to increased tax basis of any Acquired Company arising as a result of the application of subsection 40(3.1) of the Tax Act relating to a Pre-Closing Taxable Period for which the Buyer has been indemnified hereunder.
|
10.4
|
Indirect Claims.
|
10.5
|
Waiver of Other Representations.
|
(a)
|
Notwithstanding anything in this agreement to the contrary and except those representations and warranties expressly set forth in this Agreement or in any other Transaction Document, it is the explicit intent of each Party, and the Parties hereby agree, that none of Seller or any of its Affiliates or their respective Representatives has made or is making any representation or warranty whatsoever, express or implied, at common law, statutory or otherwise, written or oral with respect to the Acquired Companies or any of the Purchased Assets, or any part thereof and the accuracy or completeness of the information, records and data now, heretofore or hereafter Made Available or otherwise provided to Buyer in connection with this Agreement (including any description of the Acquired Companies, the Purchased Assets, revenue, price and expense assumptions, financial projections or forecasts, electricity demand forecasts, environmental information or any other information furnished to Buyer by Seller or any Affiliate of Seller (including the Acquired Companies) or any of the respective Representatives thereof) and any such other representations or warranties are hereby expressly disclaimed; provided, however, that nothing herein shall release Seller from liability for Fraud, intentional misrepresentation or wilful misconduct. Buyer has not executed or authorized the execution of this Agreement in reliance upon any such promise, representation or warranty not expressly set forth herein or in the Transaction Documents.
|
(b)
|
Except for those representations and warranties expressly set forth herein or in any other Transaction Document, Seller expressly disclaims any representations or warranties of any kind or nature, express or implied, as to the condition, value
|
10.6
|
Remedies; Waiver of Remedies.
|
(a)
|
The Parties agree that damages at Law shall be an inadequate remedy for the breach of any of the covenants, promises and agreements contained in this Agreement by Buyer or Seller, and, accordingly, the Parties shall be entitled to injunctive relief with respect to any such breach, including specific performance in accordance with this Agreement of such covenants, promises or agreements or an order enjoining such other party from any threatened, or from the continuation of any actual, breach of the covenants, promises or agreements contained in this Agreement, all without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting bond. Each of the Parties hereto further agrees that it shall not object to, or take any position inconsistent with respect to, whether in a court of Law or otherwise, (i) the appropriateness of the specific performance contemplated by this
Section 10.6
and (ii) the exclusive jurisdiction of the courts set forth in
Section 12.12
with respect to any action brought for any such remedy. The rights set forth in this
Section 10.6(a)
shall be in addition to any other rights that the Parties may have at Law or in equity pursuant to this Agreement. Except for specific performance or other injunctive or equitable relief to the extent that specific performance or such other relief would otherwise be available to the Parties hereunder and except in respect of Fraud, intentional misrepresentation or wilful misconduct, Buyer and
|
(b)
|
Each Party further agrees that (i) by seeking the remedies provided for in this
Section 10.6
, a Party shall not in any respect waive its right to seek any other form of relief that may be available to such party under this Agreement, or in the event that the remedies provided for in this
Section 10.6
are not available or otherwise are not granted and (ii) nothing set forth in this
Section 10.6
shall require any Party to institute any action for (or limit any Party’s right to institute any action for) specific performance under this
Section 10.6
prior or as a condition to exercising any termination right under
Article 9
, nor shall the commencement of any action pursuant to this
Section 10.6
or anything set forth in this
Section 10.6
restrict or limit any such Party’s right to terminate this Agreement, in accordance with
Article 9
or pursue any other remedies under this Agreement that may be available then or thereafter.
|
(c)
|
Notwithstanding anything in this agreement to the contrary, no Party or its Affiliates, or their respective Representatives, shall be liable for Non-Reimbursable Damages.
|
(d)
|
Notwithstanding anything in this Agreement to the contrary, no Representative or Affiliate of Seller shall have any personal liability to Buyer or any other Person as a result of the breach of any representation, warranty, covenant, agreement or obligation of Seller in this Agreement and no Representative or Affiliate of Buyer shall have any personal liability to Seller or any other Person as a result of the breach of any representation, warranty, covenant, agreement or obligation of Buyer in this Agreement, other than, in each case, Losses resulting from Fraud, intentional misrepresentation or wilful misconduct.
|
10.7
|
Indemnification Procedures.
|
(a)
|
In the event that an Indemnified Party becomes aware of the existence of any Indemnification Claim or Third Party Claim, the Indemnified Party shall promptly cause written notice thereof (a “
Claim Notice
”) to be delivered to the Indemnifying Party; provided that, so long as such notice is given within the applicable time period described in
Section 10.2(a)(i)
or
Section 10.2(a)(ii)
, no delay on the part of the Indemnified Party in giving any such notice shall relieve the Indemnifying Party of any indemnification obligation hereunder unless (and then solely to the extent that) the Indemnifying Party is actually and materially prejudiced by such delay.
|
(b)
|
Each Claim Notice shall be in writing and (i) shall specify the basis for indemnification claimed by the Indemnified Party, including a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arisen, (ii) if such Claim Notice is being given with respect to a Third Party Claim, shall describe in reasonable detail such Third Party Claim and shall be accompanied by copies of all relevant pleadings, demands and other papers served on the Indemnified Party and (iii) shall specify the amount of (or if not finally determined, a good faith estimate of) the Losses being incurred by, or
|
(c)
|
The Indemnifying Party shall have the right, at its sole option and expense, to be represented by counsel of its choice and, provided that the Indemnifying Party has irrevocably acknowledged to the Indemnified Party in writing the Indemnifying Party’s obligation to indemnify the Indemnified Party in respect of such Third Party Claim, to defend against, negotiate, settle or otherwise handle any Third Party Claim and if the Indemnifying Party elects to defend against, negotiate, settle or otherwise handle any Third Party Claim, it shall, within the Dispute Period, notify the Indemnified Party in writing of its intent to do so. Notwithstanding the foregoing, if the Indemnifying Party is Seller, such Indemnifying Party shall not have the right to defend any Third Party Claim (i) that seeks an injunction or other equitable relief against the Indemnified Party, (ii) that is brought by a material customer or supplier, or (iii) if such Indemnifying Party would not be liable for more than 50% of the Losses that have been or may be sustained by the Indemnified Party. If the Indemnifying Party does not elect in writing within the Dispute Period to defend against, negotiate, settle or otherwise handle any Indemnification Claim, the Indemnified Party may, at the sole cost of the Indemnifying Party, defend against, negotiate, settle or otherwise handle such Indemnification Claim in accordance with this Agreement. If the Indemnifying Party elects to defend against, negotiate, settle with or otherwise handle any Indemnification Claim, the Indemnified Party may participate, at its own expense, in the defense of such Indemnification Claim; provided, however, that such Indemnified Party shall be entitled to participate in any such defense with separate counsel reasonably acceptable to the Indemnifying Party, at the reasonable expense of the Indemnifying Party if (i) so requested by the Indemnifying Party to participate or (ii) the Indemnified Party reasonably determines that having common counsel would present a conflict of interests or there are additional or separate defences available to the Indemnified Party, in which in each case costs and expenses of the Indemnified Party shall be paid by the Indemnifying Party; and provided, further, that the Indemnifying Party shall not be required to pay for more than one such counsel for all Indemnified Parties in connection with any Indemnification Claim.
|
(d)
|
The Indemnifying Party, on the one hand, and the Indemnified Party, on the other hand, agree to cooperate with each other in connection with the defense, negotiation or settlement of any such Third Party Claim, including providing information reasonably available to such Party and any assistance reasonably requested in order to ensure the proper and adequate defense of any such claim. Notwithstanding anything in this
Section 10.7
to the contrary, the Indemnifying Party shall not, without the written consent of the Indemnified Party (such consent not to be unreasonably withheld, conditioned or delayed), settle or compromise any Third Party Claim or permit a default or consent to entry of any judgment (each a “
Settlement
”) unless (i) the claimant and such Indemnifying Party provide to such Indemnified Party an unqualified release from the Indemnification Claim, (ii) such Settlement does not contain any admission of Fraud or wrongdoing on behalf of the Indemnified Party and (iii) such Settlement provides solely for monetary payment.
|
(e)
|
After any final decision, judgment or award shall have been rendered by a Governmental Authority of competent jurisdiction and the expiration of the time in which to appeal therefrom, or a Settlement or arbitration shall have been consummated, or the Indemnified Party and the Indemnifying Party shall have arrived at a mutually binding agreement with respect to an Indemnification Claim hereunder, the Indemnified Party shall forward to the Indemnifying Party notice of any sums due and owing by the Indemnifying Party pursuant to this Agreement with respect to such matter and the Indemnifying Party shall make prompt payment thereof, and in any event within five (5) Business Days.
|
(f)
|
If the Indemnifying Party does not undertake within the Dispute Period to defend against an Indemnification Claim, then the Indemnifying Party shall have the right to participate in any such defense at the sole cost and expense of the Indemnifying Party. Notwithstanding the foregoing or anything in this
Section 10.7
to the contrary, the Indemnified Party shall not effect a Settlement without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed.
|
(g)
|
In the event that an Indemnified Party has delivered a Claim Notice in respect of an Indemnification Claim that does not involve a Third Party Claim, the Indemnifying Party and the Indemnified Party shall attempt in good faith to resolve any disputes with respect to such Claim Notice within forty-five (45) days of the delivery by the Indemnifying Party thereof. If not resolved in such forty-five (45) day period, such Indemnification Claim may be resolved through judicial actions, suits or proceedings brought by either such party or by such other means as such parties mutually agree.
|
(h)
|
Seller is hereby constituted as trustee for each of the Seller Indemnified Parties, and Buyer is hereby constituted as trustee for each of the Buyer Indemnified Parties, of the covenants of this
Article 10
and Seller and Buyer, respectively, each accept such trust and agree to hold and enforce such covenants on behalf of each such Persons.
|
10.9
|
Tax Benefit or Loss.
|
(a)
|
The Indemnifying Party shall be entitled to any actual Tax Benefit ultimately received by the Indemnified Party and arising directly from any Losses that the Indemnifying Party is responsible for under this Agreement (including, for the avoidance of doubt, pursuant to
Article 11
). Unless such Tax item cannot be claimed directly by the Indemnifying Party, the Indemnified Party shall (i) use reasonable best efforts to claim such Tax item and, without limiting the foregoing, will consider in good faith any request by the Indemnifying Party to take any restructuring steps as Indemnifying Party and Indemnified Party agree, each acting reasonably, are necessary or desirable to claim such Tax item, it being understood that taking any such steps shall be subject to the prior approval of the Indemnified Party, acting reasonably, and (ii) pay to the Indemnifying Party the
|
(b)
|
Any amounts payable by an Indemnifying Party to or on behalf of an Indemnified Party with respect to any Loss or Taxes pursuant to
Section 10.1
shall be increased to take account of any net Tax cost incurred by the Indemnified Party or any of its Affiliates arising from the receipt of indemnity payments hereunder (grossed up for such increase).
|
11.5
|
Limitations on Confidential Information.
|
(a)
|
Notwithstanding
Section 11.2
and
Section 11.3
, from and after the Closing, Seller Confidential Information and Buyer Confidential Information may be disclosed if required by any Governmental Authority or otherwise by Law or the rules of any recognized national stock exchange (including, for greater certainty, the New York Stock Exchange); provided, however, that: (i) such Seller Confidential Information and Buyer Confidential Information is submitted under any and all applicable provisions for confidential treatment and (ii) if the disclosing Party is permitted to do so, the other Party is given written notice of the requirement for disclosure promptly after such disclosure is requested, so that it may take whatever action it deems appropriate, including intervention in any proceeding and seeking a protective order or an injunction, to prohibit such disclosure. If Seller Confidential Information or Buyer Confidential Information is disclosed under the provisions of this
Section 11.5(a)
, to the extent the disclosing Party is permitted by Law to do
|
(b)
|
Each Party hereby agrees that, from and after the Closing, it will not make any use of any Seller Confidential Information or Buyer Confidential Information, as applicable, received pursuant to this Agreement, except in connection with the transactions contemplated by this Agreement or the other Transaction Documents or as expressly permitted in this Agreement, unless specifically authorized to do so in writing by the other Party, and this Agreement shall not be construed as a license or authorization to either Party to utilize Seller Confidential Information or Buyer Confidential Information, as applicable, except for such purpose.
|
(c)
|
From and after the Closing, upon a Party’s written request, except as advised by counsel that such actions would result in a violation of Law or would violate the receiving Party’s demonstrable internal document retention policies aimed at legal, corporate governance or regulatory compliance, the other Party shall return or destroy as promptly as practicable, but in a period not to exceed ten (10) Business Days, (i) all Seller Confidential Information or Buyer Confidential Information (as applicable) provided to such Party, as appropriate, including all copies of such Seller Confidential Information or Buyer Confidential Information (as applicable) and (ii) all notes or other documents in digital or other format in their possession or in the possession of other persons to whom Seller Confidential Information or Buyer Confidential Information (as applicable) was properly provided by such Party. Non-destruction of electronic copies of materials or summaries containing or reflecting Seller Confidential Information or Buyer Confidential Information (as applicable) that are automatically generated through data backup or archiving systems and that are not readily accessible by a Party’s business personnel shall not be deemed to violate this Agreement, so long as Seller Confidential Information or Buyer Confidential Information (as applicable) to the extent contained in or reflected in such electronic backup records is not disclosed or used in violation of the other terms of this Agreement.
|
12.1
|
Notices.
|
(a)
|
Unless this Agreement specifically requires otherwise, any notice, demand or request provided for in this Agreement, or served, given or made in connection with it, shall be in writing and shall be deemed properly served, given or made if delivered in person, or sent by email or facsimile, or sent by registered or certified mail, postage prepaid, or by a nationally recognized overnight courier service that provides a receipt of delivery, in each case, to the Parties at the addresses specified below or to such other place and with such other copies as a Party may designate as to itself by written notice to the other Party:
|
(b)
|
Notice given by personal delivery, mail or overnight courier pursuant to this
Section 12.1
shall be effective upon physical receipt. Notice given by email or facsimile pursuant to this
Section 12.1
shall be effective as of the date of delivery if delivered before 5:00 P.M. Toronto time on any Business Day or the next succeeding Business Day if delivery is after 5:00 P.M. Toronto time on any Business Day or during any non-Business Day; provided that such email delivery shall not be deemed delivered in accordance herewith unless a complete copy thereof (with all attachments thereto) is actually received by the applicable Party by facsimile, mail or courier on the next Business Day (and if such copy is not timely received, then such notice shall be deemed to have been effective as of the date such copy was delivered and effective by facsimile, mail or courier in accordance with this
Section 12.1
).
|
12.12
|
Governing Law; Attornment; Waiver of Jury Trial; Submission to Jurisdiction.
|
(a)
|
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.
|
(b)
|
For the purpose of all legal proceedings this Agreement will be deemed to have been performed in the Province of Ontario and the courts of the Province of Ontario will have exclusive jurisdiction to entertain any suit, action or proceeding arising under this Agreement. The Parties each attorn to the jurisdiction of the Ontario Superior Court of Justice (Commercial List) located in the City of Toronto. Each of the Parties hereby irrevocably waives and agrees not to raise any objection it might now or hereafter have to the bringing of any such suit, action or proceeding in such court, including any objection that the place where such court is located is an inconvenient forum. Each of the Parties agrees that any judgment or order against such Party in any such suit, action or proceeding brought in such court shall be conclusive and binding upon such Party and consents to any such judgment or order being recognized and enforced in the courts of its jurisdiction of incorporation or any other courts, by registration or homologation of such judgment or order, by a suit, action or proceeding upon such judgment or order, or any other means available for enforcement of judgments or orders, at the option of the Party who commences the suit, action or proceeding.
|
(c)
|
Each of the Parties hereto knowingly, voluntarily and intentionally waives any rights it may have to a trial by jury in respect of any litigation based hereon, or arising out of, under or in connection with, this Agreement or the transactions contemplated hereunder or any course of conduct, course of dealing or statements (whether verbal or written) relating to the foregoing (including, any action to rescind or cancel this agreement and any Claims or defenses asserting
|
(d)
|
Seller irrevocably appoints McCarthy Tétrault LLP (at the address set forth in Section 12.1) its authorized attorney and agent to accept and acknowledge, for and on behalf of it, service of any and all process in the Province of Ontario, Canada in any suit, action or proceeding arising out of or relating to this Agreement. Seller agrees that service of process upon such attorney and agent by delivering a copy thereof, in care of such attorney and agent, at the above address, shall be conclusively deemed to have come to the notice of Seller at the time of such delivery and shall constitute in every respect valid and effective personal service upon Seller at the time of such delivery, and that failure by such attorney and agent to give notice of such service to Seller shall not affect the validity or effect of such service or any judgment or order based thereon or arising therefrom. Seller irrevocably authorizes and directs such attorney and agent to accept service on its behalf and agrees to appear in such suit, action or proceeding. Seller further agrees to take all action as may be necessary to confirm and continue in full force and effect the appointment of such attorney and agent so that Seller shall have an attorney and agent for service of process in the Province of Ontario, Canada.
|
Citibank, N.A.
580 CrossPoint Parkway
Getzville
,
NY 14068
|
|
|
|
|
Date:
|
April 03, 2018
|
|
|
|
|
To:
|
NextEra Energy Operating Partners, LP
|
("Counterparty" Party B)
|
Attn:
|
|
|
Email:
|
|
|
Tel:
|
|
|
Fax:
|
|
|
|
|
|
From:
|
CITIBANK N.A., New York (Party A)
|
|
Attn:
|
Thomas Carter
|
|
Email:
|
thomas
.
h
.
carter@citi.com
|
|
Tel:
|
(716) 730 7183
|
|
Fax:
|
|
|
|
|
|
Transaction Reference Number: 10012761089
|
|
|
|
|
|
USI 1030187177 163002NY988086981
|
|
Citibank, N.A.
580 CrossPoint Parkway
Getzville
,
NY 14068
|
|
|
|
|
Trade Date:
|
April 02, 2018
|
|
|
Date of Annex A to the
1998 Currency Definitions:
|
09-25-2000,
as amended through Trade Date.
|
|
|
Amount and currency payable by Party A:
|
USD 573,774,109.55
|
|
|
Amount and currency payable by Party B:
|
CAD 741,000,000.00
|
|
|
Exchange Rate:
|
1.291449
|
|
|
Settlement Date:
|
July 03, 2018
|
|
|
Offices:
|
The Office for Citibank, N.A. for this Transaction is
New York.
|
Citibank, N.A.
580 CrossPoint Parkway
Getzville
,
NY 14068
|
|
|
|
|
Payments to Citibank, N.A., New York:
|
Account for payments:
Citibank, N.A., New York
ABA # 021000089
Account No. 36001339
|
|
|
Payments to NextEra Energy Operating Partners, LP: Please advise
|
Citibank, N.A.
580 CrossPoint Parkway
Getzville
,
NY 14068
|
|
|
|
|
Citibank, N.A., New York
|
|
NextEra Energy Operating Partners, LP
|
|
|
|
|
|
|
DAN RILEY
|
|
ARMANDO PIMENTEL
|
|
|
Armando Pimentel, Jr.
|
|
|
President
|