Execution Date Conditions Precedent. The obligations of the Investor and the Class B Member to consummate the transactions contemplated by this Agreement on the Execution Date are subject to the satisfaction of or waiver by Investor and the Class B Member, as applicable, of each of the following conditions: (“Execution Date Conditions Precedent”): (a) the Investor has received fully executed copies of each of the Principal Facility Documents which has been executed and delivered as of such date, each in form and substance reasonably satisfactory to the Investor, and each such Principal Facility Document is in full force and effect; (b) the Investor has received fully executed copies of this Agreement, the Guaranty, the MESPA, the MOMA, the ASA and the Facility Company LLC Agreement, each in form and substance reasonably satisfactory to the Investor, and each is in full force and effect; (c) the Investor has received (i) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, substantially in the form of Annex 8-A hereto, (ii) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special California counsel, substantially in the form of Annex 8-B hereto, and (iii) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special permitting counsel, substantially in the form of Annex 8-C hereto; (d) the Investor has received the Insurance Report, in form and substance reasonably satisfactory to it, and a letter executed by the Insurance Consultant permitting the Investor to rely on such Insurance Report, if not addressed to the Investor; (e) the Investor has received a tax opinion from Winston & ▇▇▇▇▇▇ LLP, which opinion shall be in form and substance reasonably satisfactory to it; (f) the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated hereunder and to make the capital contributions and payments in accordance with Article Two, subject only to the satisfaction or waiver of the conditions set forth in Section 6.2 or Section 6.4, as applicable; (g) the Investor has received, as applicable, (i) an incumbency certificate dated as of the Execution Date from the Facility Entities, the Class B Member and the Guarantor, (ii) from the Class B Member, on behalf of each Facility Entity, a certificate from an authorized officer dated as of the Execution Date to the effect that to such officer’s Knowledge the conditions set forth in Section 6.1 have been satisfied, (iii) a good standing certificate of the Guarantor, the Class B Member and the Facility Entities, each dated as of a recent date, from the applicable Secretary of State, (iv) resolutions of the Board of Directors, or other equivalent governing body, of the Facility Entities, the Class B Member and the Guarantor authorizing and approving the execution of this Agreement, the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date and (v) formation documents certified by a secretary or an assistant secretary as of the Execution Date, in each case, unless otherwise noted, of the Guarantor, the Class B Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor; (h) the Class B Member shall have delivered to the Investor an affidavit of non-foreign status dated the Execution Date that complies with Section 1445 of the Code; (i) the Investor has received the Base Case Model, including a compilation report, in form and substance reasonably satisfactory to it; (j) the Investor has received the annual budget for the Facility Company, and the balance sheet of the Facility Company as of the Execution Date; (k) the Investor shall have received copies of searches of all financing statements of public record and of judgment, litigation and tax lien records that relate or pertain to the Facilities, the Company and the Facility Company; (l) the Investor has received the Appraisal, in form and substance reasonably satisfactory to it; (m) the Investor has received satisfactory evidence of the transfer of the membership interests in the Facility Company from the Class B Member to the Company; and (n) the Investor has received fully executed copies of the Interparty Agreement and the Financing Documents that have been executed as of such date.
Appears in 2 contracts
Sources: Equity Contribution Agreement (Bloom Energy Corp), Equity Contribution Agreement (Bloom Energy Corp)
Execution Date Conditions Precedent. The obligations of the Investor and the Class B Member to consummate the transactions contemplated by this Agreement on the Execution Date are subject to the satisfaction of or waiver by Investor and the Class B Member, as applicable, of each of the following conditions: (“Execution Date Conditions Precedent”):
(a) the Investor has received fully executed copies of each of the Principal Facility Documents which has been executed and delivered as of such dateDocuments, each in form and substance reasonably satisfactory to the Investor, and each such Principal Facility Document is in full force and effect;
(b) the Investor has received fully executed copies of this Agreement, the Guaranty, the MESPAGuarantor Account Agreement, the MOMAMESPSA, the ASA and ASA, the Facility Company LLC Agreement, the IP License and the IP Security Agreement, each in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;
(c) the Investor has received (i) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ O’Melveny & ▇▇▇▇▇▇▇▇▇ LLP, substantially in the form of Annex 8-A hereto, (ii) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ O’Melveny & ▇▇▇▇▇▇▇▇▇ LLP, special California counsel, substantially in the form of Annex 8-B B.1 hereto, (iii) a legal opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special Connecticut counsel, substantially in the form of Annex 8-B.2, and (iiiiv) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special permitting counselcounsel for California, substantially in the form of Annex 8-C C.1 hereto;
(d) the Investor has received the Insurance Report, in form and substance reasonably satisfactory to it, and a letter executed by the Insurance Consultant permitting the Investor to rely on such Insurance Report, if not addressed to the Investor;
(e) the Investor has received a tax opinion from Winston & ▇▇▇▇▇▇ LLP, which opinion shall be in form and substance reasonably satisfactory to it;
(f) the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated hereunder and to make the capital contributions and payments in accordance with Article Two, subject only to the satisfaction or waiver of the conditions set forth in Section 6.2 or Section 6.4, as applicable;
(g) the Investor has received, as applicable, (i) an incumbency certificate dated as of the Execution Date from the Facility Entities, from the Class B Member and the Guarantor, (ii) from the Class B Member, on behalf of each Facility Entity, a certificate from an authorized officer dated as of the Execution Date to the effect that to such officer’s Knowledge the conditions set forth in Section 6.1 have been satisfied, (iii) a good standing certificate of the Guarantor, the Class B Member and the Facility Entities, each dated as of a recent date, from the applicable Secretary of State, (iv) resolutions of the Board of Directors, or other equivalent governing body, of the Facility Entities, the Class B Member and the Guarantor authorizing and approving the execution of this Agreement, the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date and (v) formation documents certified by a secretary or an assistant secretary as of the Execution Date, in each case, unless otherwise noted, of the Guarantor, the Class B Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;
(h) the Class B Member shall have delivered to the Investor an affidavit of non-foreign status dated the Execution Date that complies with Section 1445 of the Code;
(i) the Investor has received the Base Case Model, including a compilation report, in form and substance reasonably satisfactory to it;
(j) the Investor has received the annual budget for the Facility Company, and the balance sheet of the Facility Company as of the Execution Date;
(k) the Investor shall have has received copies of searches of all financing statements of public record and of judgment, litigation and tax lien records that relate or pertain to the Facilities, the Company and the Facility Company;
(l) the Investor has received the Appraisal, in form and substance reasonably satisfactory to it;
(m) the Investor has received satisfactory evidence of the transfer of the membership interests in the Facility Company from the Class B Member to the Company; and;
(n) the Investor has received fully executed copies of the Interparty Agreement and the Financing Documents that have been executed as of such date;
(o) the Investor has received the Independent Engineer Report and a letter executed by the Independent Engineer permitting the Investor to rely on such Independent Engineer Report, if not addressed to the Investor, in each case in form and substance reasonably satisfactory to the Investor;
(p) the Investor has received evidence that the Class B Member has, by electronic mail, overnight delivery or registered or certified mail (A) notified [***] PPA Customer 1 of the partial assignment to 2012 ESA of the document listed in clause (i) of the definition of Power Purchase Agreement and of the partial assignment to the Facility Company of the document listed in clause (iv) of the definition of Power Purchase Agreement, and (B) notified [***] PPA Customer 2 of the partial assignment to 2012 ESA of the document listed in clause (iii) of the definition of Power Purchase Agreement and the assignment to the Facility Company of the document listed in clause (v) of the definition of Power Purchase Agreement;
(q) the Investor has received evidence that the Class B Member has, by electronic mail, overnight delivery or registered or certified mail to each of [***] PPA Customer 1 and [***] PPA Customer 2, submitted a request for clarification that the use of the word “lease” in Exhibit C to each of the [***] Power Purchase Agreements associated with Facilities in the service territory of LADWP was unintended and/or a mistake and, in connection therewith, a request for an acknowledgment that a corrected Exhibit C will be substituted; and
(r) the Class B Member shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Execution Date, and owing to with respect to Transaction Expenses for all services rendered and billed prior to the Execution Date.
Appears in 1 contract
Sources: Equity Capital Contribution Agreement (Bloom Energy Corp)
Execution Date Conditions Precedent. The obligations of the Investor and the Class B Member to consummate the transactions contemplated by this Agreement on the Execution Date are subject to the satisfaction of or waiver by Investor and the Class B Member, as applicable, of each of the following conditions: (“Execution Date Conditions Precedent”):
(a) the Investor has received fully executed copies of each of the Principal Facility Documents which has been executed and delivered as of such dateDocuments, each in form and substance reasonably satisfactory to the Investor, and each such Principal Facility Document is in full force and effect;
(b) the Investor has received fully executed copies of this Agreement, the Guaranty, the MESPAGuarantor Account Agreement, the MOMAMESPSA, the ASA and ASA, the Facility Company LLC Agreement, the IP License and the IP Security Agreement, each in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;
(c) the Investor has received (i) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ O’Melveny & ▇▇▇▇▇▇▇▇▇ LLP, substantially in the form of Annex 8-A hereto, (ii) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ O’Melveny & ▇▇▇▇▇▇▇▇▇ LLP, special California counsel, substantially in the form of Annex 8-B B.1 hereto, (iii) a legal opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special Connecticut counsel, substantially in the form of Annex 8-B.2, and (iiiiv) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special permitting counselcounsel for California, substantially in the form of Annex 8-C C.1 hereto;
(d) the Investor has received the Insurance Report, in form and substance reasonably satisfactory to it, and a letter executed by the Insurance Consultant permitting the Investor to rely on such Insurance Report, if not addressed to the Investor;
(e) the Investor has received a tax opinion from Winston & ▇▇▇▇▇▇ LLP, which opinion shall be in form and substance reasonably satisfactory to it;
(f) the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated hereunder and to make the capital contributions and payments in accordance with Article Two, subject only to the satisfaction or waiver of the conditions set forth in Section 6.2 or Section 6.4, as applicable;
(g) the Investor has received, as applicable, (i) an incumbency certificate dated as of the Execution Date from the Facility Entities, from the Class B Member and the Guarantor, (ii) from the Class B Member, on behalf of each Facility Entity, a certificate from an authorized officer dated as of the Execution Date to the effect that to such officer’s Knowledge the conditions set forth in Section 6.1 have been satisfied, (iii) a good standing certificate of the Guarantor, the Class B Member and the Facility Entities, each dated as of a recent date, from the applicable Secretary of State, (iv) resolutions of the Board of Directors, or other equivalent governing body, of the Facility Entities, the Class B Member and the Guarantor authorizing and approving the execution of this Agreement, the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date and (v) formation documents certified by a secretary or an assistant secretary as of the Execution Date, in each case, unless otherwise noted, of the Guarantor, the Class B Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;
(h) the Class B Member shall have delivered to the Investor an affidavit of non-foreign status dated the Execution Date that complies with Section 1445 of the Code;
(i) the Investor has received the Base Case Model, including a compilation report, in form and substance reasonably satisfactory to it;
(j) the Investor has received the annual budget for the Facility Company, and the balance sheet of the Facility Company as of the Execution Date;
(k) the Investor shall have has received copies of searches of all financing statements of public record and of judgment, litigation and tax lien records that relate or pertain to the Facilities, the Company and the Facility Company;
(l) the Investor has received the Appraisal, in form and substance reasonably satisfactory to it;
(m) the Investor has received satisfactory evidence of the transfer of the membership interests in the Facility Company from the Class B Member to the Company; and;
(n) the Investor has received fully executed copies of the Interparty Agreement and the Financing Documents that have been executed as of such date;
(o) the Investor has received the Independent Engineer Report and a letter executed by the Independent Engineer permitting the Investor to rely on such Independent Engineer Report, if not addressed to the Investor, in each case in form and substance reasonably satisfactory to the Investor;
(p) the Investor has received evidence that the Class B Member has, by electronic mail, overnight delivery or registered or certified mail (A) notified AT&T PPA Customer 1 of the partial assignment to 2012 ESA of the document listed in clause (i) of the definition of Power Purchase Agreement and of the partial assignment to the Facility Company of the document listed in clause (iv) of the definition of Power Purchase Agreement, and (B) notified AT&T PPA Customer 2 of the partial assignment to 2012 ESA of the document listed in clause (iii) of the definition of Power Purchase Agreement and the assignment to the Facility Company of the document listed in clause (v) of the definition of Power Purchase Agreement;
(q) the Investor has received evidence that the Class B Member has, by electronic mail, overnight delivery or registered or certified mail to each of AT&T PPA Customer 1 and AT&T PPA Customer 2, submitted a request for clarification that the use of the word “lease” in Exhibit C to each of the AT&T Power Purchase Agreements associated with Facilities in the service territory of LADWP was unintended and/or a mistake and, in connection therewith, a request for an acknowledgment that a corrected Exhibit C will be substituted; and
(r) the Class B Member shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Execution Date, and owing to with respect to Transaction Expenses for all services rendered and billed prior to the Execution Date.
Appears in 1 contract
Sources: Equity Capital Contribution Agreement (Bloom Energy Corp)
Execution Date Conditions Precedent. The obligations of the Investor and the Class B Member to consummate the transactions contemplated by this Agreement on the Execution Date are subject to the satisfaction of or waiver by Investor and the Class B Member, as applicable, of each of the following conditions: (“Execution Date Conditions Precedent”):
(a) the Investor has received fully executed copies of each of the Principal Facility Documents which has been executed and delivered as of such datedate (including, but not limited to, the documents listed in clauses (ii) and (iii) of the definition of AT&T Power Purchase Agreement), each in form and substance reasonably satisfactory to the Investor, and each such Principal Facility Document is in full force and effect;
(b) the Investor has received fully executed copies of this Agreement, the GuarantyCompany LLC Agreement, the MESPA, the MOMA, the ASA Guaranty and the Facility Company LLC Guarantor Account Agreement, each in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;
(c) the Investor has received (i) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPLLP as to customary corporate matters with respect to the execution and delivery of this Agreement and the other Investment Documents being delivered herewith, substantially in the form of Annex 8-A hereto, and (ii) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special California Delaware counsel, substantially in the form of Annex 8-B hereto, and (iii) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special permitting counsel, substantially in the form of Annex 8-C hereto;
(d) the Investor has received the Insurance Report, in form and substance reasonably satisfactory to it, and a letter executed by the Insurance Consultant permitting the Investor to rely on such Insurance Report, if not addressed to the Investor;
(e) the Investor has received a tax opinion from Winston & ▇▇▇▇▇▇ LLP, which opinion shall be in form and substance reasonably satisfactory to it;
(fe) the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated hereunder and to make the capital contributions and payments in accordance with Article Two, subject only to the satisfaction or waiver of the conditions set forth in Section 6.2 or Section 6.4, as applicable;
(gf) the Investor has received, as applicable, (i) an incumbency certificate dated as of the Execution Date from the Facility Entities, the Class B Member and the Guarantor, (ii) from the Class B Member, on behalf of each Facility Entity, a certificate from an authorized officer dated as of the Execution Date to the effect that to such officer’s Knowledge the conditions set forth in Section 6.1 have been satisfied, (iii) a good standing certificate of the Guarantor, the Class B Member and the Facility Entities, each dated as of a recent date, from the applicable Secretary of State, (iv) resolutions of the Board of Directors, or other equivalent governing body, of the Facility Entities, the Class B Member and the Guarantor authorizing and approving the execution of this Agreement, the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date and (v) formation documents certified by a secretary or an assistant secretary as of the Execution Date, in each case, unless otherwise noted, of the Guarantor, the Class B Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;
(g) the Investor has received the Base Case Model, including a compilation report, in form and substance reasonably satisfactory to it;
(h) the Investor has received the annual budget for the Facility Company, and the consolidated balance sheet of the Company as of the last day of the month immediately preceding the Execution Date;
(i) the Investor has received copies of searches of all financing statements of public record and of judgment, litigation and tax lien records;
(j) the Investor has received the Appraisal in form and substance reasonably satisfactory to it;
(k) the Investor has received fully executed copies of amendments to the Facility Company LLC Agreement, the Interparty Agreement and the Financing Documents;
(l) the Investor has received fully executed copy of the Omnibus Amendment #2;
(m) the Investor has received an update to the Independent Engineer Report and a letter executed by the Independent Engineer permitting the Investor to rely on such Independent Engineer Report, if not addressed to the Investor, in each case in form and substance reasonably satisfactory to the Investor;
(n) the Class B Member shall have delivered to the Investor an affidavit of non-foreign status dated the Execution Date that complies with Section 1445 of the Code;
(io) the Investor has received evidence that the Base Case ModelClass B Member has, including a compilation reportby electronic mail, in form overnight delivery or registered or certified mail, notified AT&T PPA Customer 1 of the partial assignment to the Facility Company of that certain Energy System Use Agreement No. 20130430.072.C dated as of May 15, 2013, by and substance reasonably satisfactory between AT&T PPA Customer 1 and 2013B and notified AT&T PPA Customer 2 of the partial assignment to itthe Facility Company of that certain Energy System Use Agreement No. 20130430.078.C dated as of May 15, 2013, by and between AT&T PPA Customer 2 and 2013B;
(jp) the Investor has received evidence that the annual budget Class B Member has, by electronic mail, overnight delivery or registered or certified mail to each of AT&T PPA Customer 1 and AT&T PPA Customer 2, submitted a request for clarification that the use of the word “lease” in Exhibit C to each of the AT&T Power Purchase Agreements associated with Facilities in the service territory of LADWP was unintended and/or a mistake and, in connection therewith, a request for an acknowledgment that a corrected Exhibit C will be substituted; and
(q) The Class B Member shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the Facility Companypayment of all outstanding amounts due, and the balance sheet of the Facility Company as of the Execution Date;
(k) the Investor shall have received copies of searches of , and owing to with respect to Transaction Expenses for all financing statements of public record services rendered and of judgment, litigation and tax lien records that relate or pertain billed prior to the Facilities, the Company and the Facility Company;
(l) the Investor has received the Appraisal, in form and substance reasonably satisfactory to it;
(m) the Investor has received satisfactory evidence of the transfer of the membership interests in the Facility Company from the Class B Member to the Company; and
(n) the Investor has received fully executed copies of the Interparty Agreement and the Financing Documents that have been executed as of such dateExecution Date.
Appears in 1 contract
Sources: Equity Capital Contribution Agreement (Bloom Energy Corp)
Execution Date Conditions Precedent. The obligations of the Investor and the Class B Member to consummate the transactions contemplated by this Agreement on the Execution Date are subject to the satisfaction of or waiver by Investor and the Class B Member, as applicable, of each of the following conditions: (“Execution Date Conditions Precedent”):
(a) the Investor has received fully executed copies of each of the Principal Facility Documents which has been executed and delivered as of such datedate (including, but not limited to, the documents listed in clauses (ii) and (iii) of the definition of [***] Power Purchase Agreement), each in form and substance reasonably satisfactory to the Investor, and each such Principal Facility Document is in full force and effect;
(b) the Investor has received fully executed copies of this Agreement, the GuarantyCompany LLC Agreement, the MESPA, the MOMA, the ASA Guaranty and the Facility Company LLC Guarantor Account Agreement, each in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;
(c) the Investor has received (i) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPLLP as to customary corporate matters with respect to the execution and delivery of this Agreement and the other Investment Documents being delivered herewith, substantially in the form of Annex 8-A hereto, and (ii) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special California Delaware counsel, substantially in the form of Annex 8-B hereto, and (iii) a legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special permitting counsel, substantially in the form of Annex 8-C hereto;
(d) the Investor has received the Insurance Report, in form and substance reasonably satisfactory to it, and a letter executed by the Insurance Consultant permitting the Investor to rely on such Insurance Report, if not addressed to the Investor;
(e) the Investor has received a tax opinion from Winston & ▇▇▇▇▇▇ LLP, which opinion shall be in form and substance reasonably satisfactory to it;
(fe) the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated hereunder and to make the capital contributions and payments in accordance with Article Two, subject only to the satisfaction or waiver of the conditions set forth in Section 6.2 or Section 6.4, as applicable;
(gf) the Investor has received, as applicable, (i) an incumbency certificate dated as of the Execution Date from the Facility Entities, the Class B Member and the Guarantor, (ii) from the Class B Member, on behalf of each Facility Entity, a certificate from an authorized officer dated as of the Execution Date to the effect that to such officer’s Knowledge the conditions set forth in Section 6.1 have been satisfied, (iii) a good standing certificate of the Guarantor, the Class B Member and the Facility Entities, each dated as of a recent date, from the applicable Secretary of State, (iv) resolutions of the Board of Directors, or other equivalent governing body, of the Facility Entities, the Class B Member and the Guarantor authorizing and approving the execution of this Agreement, the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date and (v) formation documents certified by a secretary or an assistant secretary as of the Execution Date, in each case, unless otherwise noted, of the Guarantor, the Class B Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;
(g) the Investor has received the Base Case Model, including a compilation report, in form and substance reasonably satisfactory to it;
(h) the Investor has received the annual budget for the Facility Company, and the consolidated balance sheet of the Company as of the last day of the month immediately preceding the Execution Date;
(i) the Investor has received copies of searches of all financing statements of public record and of judgment, litigation and tax lien records;
(j) the Investor has received the Appraisal in form and substance reasonably satisfactory to it;
(k) the Investor has received fully executed copies of amendments to the Facility Company LLC Agreement, the Interparty Agreement and the Financing Documents;
(l) the Investor has received fully executed copy of the Omnibus Amendment #2;
(m) the Investor has received an update to the Independent Engineer Report and a letter executed by the Independent Engineer permitting the Investor to rely on such Independent Engineer Report, if not addressed to the Investor, in each case in form and substance reasonably satisfactory to the Investor;
(n) the Class B Member shall have delivered to the Investor an affidavit of non-foreign status dated the Execution Date that complies with Section 1445 of the Code;
(io) the Investor has received evidence that the Base Case ModelClass B Member has, including a compilation reportby electronic mail, in form overnight delivery or registered or certified mail, notified [***] PPA Customer 1 of the partial assignment to the Facility Company of that certain Energy System Use Agreement No. 20130430.072.C dated as of May 15, 2013, by and substance reasonably satisfactory between [***] PPA Customer 1 and 2013B and notified [***] PPA Customer 2 of the partial assignment to itthe Facility Company of that certain Energy System Use Agreement No. 20130430.078.C dated as of May 15, 2013, by and between [***] PPA Customer 2 and 2013B;
(jp) the Investor has received evidence that the annual budget Class B Member has, by electronic mail, overnight delivery or registered or certified mail to each of [***] PPA Customer 1 and [***] PPA Customer 2, submitted a request for clarification that the use of the word “lease” in Exhibit C to each of the [***] Power Purchase Agreements associated with Facilities in the service territory of LADWP was unintended and/or a mistake and, in connection therewith, a request for an acknowledgment that a corrected Exhibit C will be substituted; and
(q) The Class B Member shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the Facility Companypayment of all outstanding amounts due, and the balance sheet of the Facility Company as of the Execution Date;
(k) the Investor shall have received copies of searches of , and owing to with respect to Transaction Expenses for all financing statements of public record services rendered and of judgment, litigation and tax lien records that relate or pertain billed prior to the Facilities, the Company and the Facility Company;
(l) the Investor has received the Appraisal, in form and substance reasonably satisfactory to it;
(m) the Investor has received satisfactory evidence of the transfer of the membership interests in the Facility Company from the Class B Member to the Company; and
(n) the Investor has received fully executed copies of the Interparty Agreement and the Financing Documents that have been executed as of such dateExecution Date.
Appears in 1 contract
Sources: Equity Capital Contribution Agreement (Bloom Energy Corp)