MEMBERSHIP INTEREST PURCHASE AGREEMENT among GENESIS SOLAR HOLDINGS, LLC, NEXTERA ENERGY PARTNERS, LP, GENESIS SOLAR FUNDING, LLC, and THE CLASS B PURCHASERS PARTY HERETO November 2, 2020
Exhibit 2.1
among
GENESIS SOLAR HOLDINGS, LLC,
GENESIS SOLAR FUNDING, LLC,
and
THE CLASS B PURCHASERS PARTY HERETO
November 2, 2020
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SCHEDULES:
Schedule A – Capitalization and Purchaser Allocations
Schedule B – Acquired Assets and Contributed Assets
Schedule C – Knowledge Parties
Schedule D – Restructuring Transactions
Schedule E – Governmental Authorizations
Schedule F – Consents
Schedule G – Affiliate Contracts; Support Obligations
Schedule H – Execution Date Portfolio Project Model
Schedule I – Portfolio Project Model Assumptions and Adjustment Procedures
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Schedule J – Projects
Schedule K – Power Purchase Agreements
Schedule L – Debt for Borrowed Money
EXHIBITS:
Exhibit A – Form of A&R LLC Agreement
Exhibit B – Form of Registration Rights Agreement
Exhibit C-1 – Form of Build Out Agreement (Contributed Assets)
Exhibit C-2 – Form of Build Out Agreement (Pine Brooke)
Exhibit C-3 – Form of Build Out Agreement (Xxxxxx)
Exhibit D – Form of Contribution Agreement
Exhibit E – Form of Assignment of Pine Brooke (Class C) PSA Appendix
Exhibit F – Form of Assignment of Xxxxxx PSA Appendix
Exhibit G – Form of Blocker Purchase Agreement
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This Membership Interest Purchase Agreement, dated as of November 2, 2020 (this “Agreement”), is entered into by and among Genesis Solar Holdings, LLC, a Delaware limited liability company (the “Company”), Genesis Solar Funding, LLC, a Delaware limited liability company (the “Class A Purchaser”), the Class B Purchasers set forth in Schedule A hereto, including KKR Genesis TL Borrower LLC, a Delaware limited liability company, as a Class B Purchaser and as the Class B Purchaser Representative (in such capacity, the “Class B Purchaser Representative”), and NextEra Energy Partners, LP, a Delaware limited partnership (“NEP”), solely to the extent of the NEP Obligations set forth herein.
WHEREAS, the Company was previously formed under the Delaware LLC Act by the Class A Purchaser as the sole initial member of the Company, and its business and affairs are presently governed by that certain Second Amended and Restated Limited Liability Company Agreement of the Company, effective as of April 1, 2020 (the “Company LLC Agreement”);
WHEREAS, prior to the Initial Closing (as defined below), (i) a direct or indirect Subsidiary of NEP shall have acquired the Initial Acquired Assets (as defined below), directly or indirectly, pursuant to the Asset Purchase Agreement (as defined below), and shall have directly or indirectly contributed such Initial Acquired Assets to the Class A Purchaser, and (ii) the Class A Purchaser shall have (a) contributed to the Company such Initial Acquired Assets pursuant to the Assignment of Pine Brooke (Class C) PSA Appendix and (b) contributed (or be deemed to have contributed) to the Company all of the Contributed Assets pursuant to the Contribution Agreement (each, as defined below);
WHEREAS, (i) prior to the Initial Closing, the Company LLC Agreement shall be amended and restated substantially in the form of the Third Amended and Restated Limited Liability Company Agreement of the Company attached hereto as Exhibit A (the “A&R LLC Agreement”), and, simultaneously therewith, the Company desires to issue and sell to the Class A Purchaser, and the Class A Purchaser desires to purchase from the Company, the Class A Purchased Units (as defined below) and the Additional Aggregate Class B Purchased Units (as defined below), in exchange for the Class A Purchaser’s contribution of the Initial Acquired Assets and the Contributed Assets (as defined below) to the Company, on the terms and subject to the conditions set forth in this Agreement; (ii) following such issuance and sale of the Class A Purchased Units and the Additional Aggregate Class B Purchased Units to the Class A Purchaser, (a) at the Initial Closing, the Company desires to issue and sell to each of the Class B Purchasers, and each Class B Purchaser desires to purchase from the Company, such Class B Purchaser’s Pro Rata Share of the Initial Aggregate Class B Purchased Units, in exchange for payment to the Company by each Class B Purchaser of its Pro Rata Share of the Initial Aggregate Class B Purchase Price (as defined below), on the terms and subject to the conditions set forth in this Agreement (such transfer of the Initial Aggregate Class B Purchased Units by the Company to the Class B Purchasers at the Initial Closing, the “Initial Class B Units Sale”); and (b) immediately upon consummation of the Initial Class B Units Sale at the Initial Closing, each of the Class B Purchasers will be admitted as a Class B Member of the Company pursuant to the A&R LLC Agreement, and shall thereafter be subject to the terms and conditions thereof, as applicable to the Class B Members;
WHEREAS, promptly following the later to occur of the Initial Closing and the consummation of the PSA Closing, subject to Section 2.17, the Company shall distribute to the Class A Purchaser an amount in cash equal to the Initial Closing Distribution Amount;
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WHEREAS, on or prior to the second (2nd) Business Day following the latest to occur of (i) the Initial Closing, (ii) the consummation of the PSA Closing and (iii) the consummation of the Xxxxxx PSA Closing, subject to Section 2.17 and Section 5.08, the Company shall use a portion of the Initial Aggregate Class B Purchase Price to pay the Xxxxxx Purchase Price (as defined below) and consummate the Xxxxxx Acquisition (as defined below);
WHEREAS, immediately prior to the Additional Closing (as defined below), if and to the extent applicable in accordance with the terms of this Agreement, the Class A Purchaser will contribute the Additional Aggregate Class B Purchased Units to the Company and immediately following such contribution of the Additional Aggregate Class B Purchased Units to the Company, at the Additional Closing, the Company desires to sell to each of the Class B Purchasers, and each Class B Purchaser desires to purchase from the Company, such Class B Purchaser’s Pro Rata Share of the Additional Aggregate Class B Purchased Units, if any, in exchange for payment to the Company by each Class B Purchaser of its Pro Rata Share of the Additional Aggregate Class B Purchase Price (as defined below), which shall be paid by each of the Class B Purchasers to the Company at the Additional Closing, on the terms and subject to the conditions set forth in this Agreement (such transfer of the Additional Aggregate Class B Purchased Units by the Company to the Class B Purchasers at the Additional Closing, if any, the “Additional Class B Units Sale”);
WHEREAS, promptly following the Additional Class B Units Sale (if any), the Company shall distribute to the Class A Purchaser an amount in cash equal to the Additional Aggregate Class B Purchase Price; and
WHEREAS, on the Execution Date, Sponsor has entered into a certain limited guaranty in favor of NEP (the “Limited Guaranty”), guaranteeing certain obligations of the Class B Purchasers set forth in Section 7.03 of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties (as defined below) hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, the following terms have the meanings indicated:
“2017-A Registration Rights Agreement” means that certain Amended and Restated Registration Rights Agreement by and between NEP and NextEra Energy, Inc., a Florida corporation, dated as of August 4, 2017.
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0000-X Registration Rights Agreement” means that certain Registration Rights Agreement by and among NEP and the purchasers named on Schedule A thereto, dated as of November 15, 2017.
2018 Registration Rights Agreement” means that certain Registration Rights Agreement by and among NEP, Global Energy & Power Infrastructure II Advisors, L.L.C., and Western Renewables Partners LLC, dated as of December 21, 2018.
2019-A Registration Rights Agreement” means that certain Registration Rights Agreement by and among NEP, Nitrogen TL Borrower LLC, a Delaware limited liability company, and the other purchasers named as a party thereto, dated as of June 11, 2019.
“2019-B Registration Rights Agreement” means that certain Registration Rights Agreement by and among NEP and GEPIF III Xxxxx Investco, L.P., dated as of November 13, 2019.
“2019-C Registration Rights Agreement” means that certain Registration Rights Agreement by and among NEP and EIG NET Holdings III, LLC, dated as of December 4, 2019.
“2020 Amendment to Asset Purchase Agreement” means the Amendment to the Amended and Restated Purchase and Sale Agreement ((2020) Projects), dated as of the Execution Date, by and between NEP Acquisitions and Sellco, including the Pine Brooke (Class C) PSA Appendix and, subject to Section 5.08, the Xxxxxx PSA Appendix attached thereto.
“A&R LLC Agreement” has the meaning specified in the recitals to this Agreement.
“Acquired Assets” means (i) the Initial Acquired Assets, which shall be acquired by the Company prior to the Initial Closing pursuant to the Assignment of Pine Brooke (Class C) PSA Appendix, and (ii) subject to Section 5.08, from and after consummation of the Xxxxxx Acquisition, the Xxxxxx Interest, which shall, subject to Section 5.08, be acquired by the Company on or prior to the second (2nd) Business Day following the latest to occur of (i) the Initial Closing, (ii) the consummation of the PSA Closing and (iii) the consummation of the Xxxxxx PSA Closing.
“Acquired Project Companies” means (i) the Initial Acquired Project Companies and (ii) subject to Section 5.09, from and after consummation of the Xxxxxx Acquisition, Xxxxxx.
“Additional Aggregate Class B Purchase Price” means such aggregate amount of the Class B Purchase Price as shall be set forth in the Notice of Additional Closing, if any, delivered in accordance with Section 2.08(a) or Section 2.08(b), which amount shall equal the excess, if any, of the Class B Purchase Price over the Initial Aggregate Class B Purchase Price.
“Additional Aggregate Class B Purchased Units” means the aggregate number of Class B Units to be (i) issued and sold by the Company to the Class A Purchaser at the Initial Closing, (ii) contributed to the Company by the Class A Purchaser pursuant to the Additional Class B Units Contribution, and (iii) sold by the Company to all Class B Purchasers at the Additional Closing (if any), which number, in each case of (i), (ii), and (iii), shall be equal to the excess (if any) of the Aggregate Class B Purchased Units over the Initial Aggregate Class B Purchased Units.
“Additional Class B Units Contribution” has the meaning set forth in Section 2.01(h).
“Additional Class B Units Contribution Agreement” means that certain contribution agreement, to be entered into and effective as of immediately prior to the Additional Closing, by and between the Company and the Class A Purchaser.
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“Additional Class B Units Sale” has the meaning set forth in the recitals of this Agreement.
“Additional Closing” means the consummation of the purchase and sale of the Additional Aggregate Class B Purchased Units by the Company to the Class B Purchasers, if and to the extent applicable, pursuant to Section 2.08(a). For the avoidance of doubt, there shall not be more than one Additional Closing, if any.
“Additional Closing Date” means the date, if any, on which the Additional Closing is actually consummated pursuant to Section 2.08(a).
“Additional Closing Dispute Notice” has the meaning set forth in Section 2.16(b)(i).
“Additional Closing Model Input Updates” means any changes to the value of the inputs as set forth in any cell highlighted in purple (or in the case of a change described in clause (iv) below, in blue) in the Portfolio Project Model, from the values set forth in the Initial Closing Portfolio Project Model, to the extent such changes result from (i) the Xxxxxx Bring-Down Consultant Reports, (ii) a Xxxxxx Tax Equity Financing Change, (iii) the Xxxxxx Solar Project not achieving Commercial Operation on or prior to the applicable date set forth in the Initial Closing Portfolio Project Model with respect to the Xxxxxx Solar Project, (iv) changes to the Debt Financing that are contemplated by the Credit Agreement or other Loan Documents (as defined in the Credit Agreement) and expressly permitted and provided for pursuant to the terms thereof, (v) any Xxxxxx Return, (vi) the failure to consummate the Additional Closing prior to the Drop-Dead Date, or (vii) the date on which the Additional Closing Date occurs (it being understood and agreed that the changes under clause (ii) has not been highlighted in the Portfolio Project Model to allow the definition of Xxxxxx Tax Equity Financing Change to govern such changes for purposes of the definition of Additional Closing Model Input Updates).
“Additional Closing Portfolio Project Model” means the Initial Additional Closing Portfolio Project Model, as finally determined pursuant to Section 2.16(b), Section 2.16(c) or Section 2.16(d), as applicable, and in a manner consistent with the assumptions and procedures set forth in Schedule I.
“Additional Closing Termination Fee” means an amount equal to the product of (i) fifteen million U.S. dollars ($15,000,000), multiplied by (ii) a fraction, the numerator of which is the Additional Aggregate Class B Purchase Price and the denominator of which is the Class B Purchase Price.
“Additional Individual Class B Purchase Price” means, with respect to each Class B Purchaser, the price paid to the Company by such Class B Purchaser in respect of the Additional Individual Class B Purchased Units purchased by such Class B Purchaser at the Additional Closing (if any), which amount shall equal such Class B Purchaser’s Pro Rata Share set forth in Section III of Schedule A hereto, multiplied by the Additional Aggregate Class B Purchase Price, if any.
“Additional Individual Class B Purchased Units” means, with respect to each Class B Purchaser, such number of Class B Units to be purchased by such Class B Purchaser from the Company at the Additional Closing (if any), which number shall equal such Class B Purchaser’s Pro Rata Share set forth in Section III of Schedule A hereto, multiplied by the total number of Additional Aggregate Class B Purchased Units, if any.
“Additional Transaction Adjustments” has the meaning specified in Section 2.16(b)(i).
“Adjustment Assumptions” has the meaning specified in Schedule I.
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“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, the Person in question. As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. For the avoidance of doubt, for purposes of this Agreement, (a) NEP and its Subsidiaries, on the one hand, and any Class B Purchaser, on the other, shall not be considered Affiliates and (b) any fund or account managed, advised or subadvised, directly or indirectly, by a Purchaser or its Affiliates shall be considered an Affiliate of such Purchaser.
“Affiliate Contract” means any material Contract between the Company or any of its Subsidiaries, on the one hand, and NEP, the NEP GP, or the NEP Subsidiaries, or any of their respective Affiliates, on the other hand.
“Aggregate Class B Purchased Units” means the total number of Class B Units set forth in Section I of Schedule A hereto, which number shall equal the sum of (a) the number of Additional Aggregate Class B Purchased Units to be issued and sold by the Company to the Class A Purchaser at the Initial Issuance and (b) the number of Initial Aggregate Class B Purchased Units to be issued and sold by the Company to the Class B Purchaser(s) at the Initial Closing, in each case of clauses (a) and (b), as shall be set forth in the Notice of Initial Closing, and in an update to Section II of Schedule A hereto prior to the Initial Closing.
“Agreement” has the meaning set forth in the introductory paragraph of this Agreement.
“Anti-Corruption Law” means the FCPA or any other applicable Law related to bribery or corruption.
“Applicable Transaction Terms” has the meaning specified in Section 2.16(a).
“Asset Purchase Agreement” means that certain Amended and Restated Purchase and Sale Agreement, dated as of February 22, 2016, by and between NEP Acquisitions and Sellco, as amended from time to time, including pursuant to the 2020 Amendment to Asset Purchase Agreement.
“Assets” means the Acquired Assets and the Contributed Assets.
“Assignment of Pine Brooke (Class C) PSA Appendix” means that certain Assignment of Pine Brooke (Class C) PSA Appendix, by and among NEP Acquisitions and the Class A Purchaser, in the form attached hereto as Exhibit E, which shall be entered into and effective prior to the Initial Closing.
“Assignment of Xxxxxx PSA Appendix” means that certain Assignment of the Xxxxxx PSA Appendix, by and between NEP Acquisitions and the Company, in the form attached hereto as Exhibit F, which, subject to Section 5.08, shall be entered into and effective immediately prior to the consummation of the Xxxxxx Acquisition.
“Associated Person” means any director, officer, agent, employee, Affiliate, or other Person acting on behalf of another Person.
“Xxxxxxx Wind Project” has the meaning specified on Schedule J hereto.
“Blocker” has the meaning set forth in the A&R LLC Agreement.
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“Blocker Purchase Agreement” means that certain Blocker Purchase Agreement to be entered into by and among the Company, the Class A Purchaser, NEP, the Class B Purchaser Representative, KKR Genesis TL Parent LLC, a Delaware limited liability company (“Class B Parent”), KKR Genesis Holdco LLC, a Delaware limited liability company (“Class B Holdco”), KKR Neon Holdco L.P., a Delaware limited partnership (“Blocker Parent”), each Blocker signatory hereto and the Term Loan Agent (as defined therein), substantially in the form attached hereto as Exhibit G.
“Blue Summit III Wind Project” has the meaning specified on Schedule J hereto.
“Bring-Down Consultant Reports” has the meaning specified in Section 2.16(a).
“Build Out Agreement (Contributed Assets)” means that certain Build Out Agreement to be entered into prior to the Initial Closing by and between NEP OpCo and the Company, substantially in the form attached hereto as Exhibit C-1.
“Build Out Agreement (Pine Brooke)” means that certain Build Out Agreement to be entered into prior to the Initial Closing by and between XXXX and Xxxx Xxxxxx Holdings, substantially in the form attached hereto as Exhibit C-2.
“Build Out Agreement (Xxxxxx)” means that certain Build Out Agreement to be entered into prior to the Xxxxxx PSA Closing by and between XXXX and NEP Acquisitions, substantially in the form attached hereto as Exhibit C-3.
“Build Out Agreements” means, collectively, the Build Out Agreement (Contributed Assets), the Build Out Agreement (Pine Brooke) and the Build Out Agreement (Xxxxxx).
“Business Day” means any day other than a Saturday, a Sunday, or a holiday on which national banking associations in the State of Delaware are closed.
“Call Option” has the meaning set forth in the A&R LLC Agreement.
“Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount required to be recorded as a liability in respect of a Capitalized Lease in accordance with GAAP; provided that any obligations either existing on the Execution Date or created prior to any re-characterization described in clause (ii) below (i) that were not required by GAAP to be included on the balance sheet as financing or capital lease obligations and (ii) are subsequently re-characterized as financing or capital lease obligations or indebtedness due to a change in GAAP, accounting treatment or otherwise, shall not, for any purposes under this Agreement, be treated as financing or capital lease obligations, Capitalized Lease Obligations or Debt for Borrowed Money.
“Capitalized Leases” means all leases that have been or are required to be, in accordance with GAAP, recorded as a lease with amounts required to be capitalized on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP; provided that, for all purposes hereunder, the amount of any Capitalized Lease Obligation shall be the amount thereof accounted for as a liability on a balance sheet in accordance with GAAP; provided, further, that, for purposes of calculations made pursuant to the terms of this Agreement or in compliance with any covenant, GAAP will be deemed to treat leases in a manner consistent with its current treatment under GAAP as of the Execution Date, notwithstanding any modifications or interpretive changes thereto that may occur thereafter.
“Cash Grant” means the grant available under Section 1603 of the American Recovery and Reinvestment Act of 2009, as amended.
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“Change of Control” has the meaning set forth in clause (a) of the definition of “Change of Control” in the A&R LLC Agreement.
“Class A Purchase Price” means an amount equal to seven hundred ninety-five million four hundred four thousand two hundred ninety-one U.S. dollars ($795,404,291.00), as such amount may be adjusted upward or downward at or prior to the Initial Closing to reflect (a) with respect to the Initial Acquired Assets, the amount of the Estimated Working Capital (as such term is defined and used in the Pine Brooke (Class C) PSA Appendix), and (b) with respect to the Contributed Assets, the Contributed Assets EWC.
“Class A Purchased Units” means the number of Class A Units set forth opposite the Class A Purchaser’s name in Section II of Schedule A hereto under the column entitled “Number and Class of Membership Interests.”
“Class A Purchaser” has the meaning set forth in the introductory paragraph of this Agreement.
“Class A Purchaser Related Parties” has the meaning specified in Section 6.01(a).
“Class A Units” means the Company’s Class A Units, having the rights, powers, privileges, duties, and obligations described in the A&R LLC Agreement.
“Class B COC Option” has the meaning set forth in the A&R LLC Agreement.
“Class B Internal Rate of Return” means, collectively, the Internal Rate of Return (as defined in the A&R LLC Agreement) thresholds set forth in Sections 5.03, 7.02, 7.03 and 7.04 of the A&R LLC Agreement, as may be adjusted pursuant to Section 2.16, and consistent with the assumptions and procedures set forth in Schedule I.
“Class B Member” has the meaning set forth in the A&R LLC Agreement.
“Class B Member Representative” has the meaning set forth in the A&R LLC Agreement.
“Class B Purchase Price” means an aggregate amount of one billion ninety-five million one hundred thousand U.S. dollars ($1,095,100,000.00), as may be adjusted pursuant to Section 2.16, and consistent with the assumptions and procedures set forth in Schedule I.
“Class B Purchase Price Return Offset” has the meaning set forth in Section 2.16(e).
“Class B Purchaser Related Parties” has the meaning specified in Section 6.01(a).
“Class B Purchaser Representative” has the meaning specified in the introductory paragraph to this Agreement.
“Class B Purchasers” means, collectively, KKR Genesis TL Borrower LLC, a Delaware limited liability company, and each of its Affiliates listed or to be listed as “Class B Purchasers” in Section II of Schedule A hereto as of the Execution Date or prior to the Initial Closing, and each of their respective Affiliates to be listed as “Class B Purchasers” in Section III of Schedule A hereto prior to the Additional Closing (if any), in each case, in accordance with Section 2.01(j) hereof.
“Class B Units” means the Company’s Class B Units, having the rights, powers, privileges, duties, and obligations described in the A&R LLC Agreement.
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“Class B Units Sales” means, collectively, the Initial Class B Units Sale and the Additional Class B Units Sale (if any).
“COD-Exempt Projects” means the Xxxxxxx Wind Project, the Elk City I Wind Project, the Genesis Solar Project, the Northern Colorado I Wind Project and the Northern Colorado II Wind Project.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commercial Operation” means, with respect to each Project (other than the COD-Exempt Projects), “Commercial Operation” or the “Commercial Operation Date,” as such terms are defined in the applicable Power Purchase Agreement in respect of such Project.
“Commission” means the United States Securities and Exchange Commission.
“Company” has the meaning set forth in the introductory paragraph of this Agreement.
“Company Entities” means, collectively, the Company, any Subsidiaries of the Company as of the Execution Date, and NEP.
“Company LLC Agreement” has the meaning set forth in the recitals to this Agreement.
“Completion Date” has the meaning set forth in the Asset Purchase Agreement.
“Confidentiality Agreement” means that certain Confidentiality Agreement, entered into as of October 24, 2019, in connection with the transactions contemplated hereby among XXXX, NEP, and Kohlberg Kravis Xxxxxxx & Co., L.P., a Delaware limited partnership, as may be amended from time to time, including by that certain letter agreement between the parties thereto, dated as of June 11, 2020.
“Consent” means any approval, authorization, consent, waiver, license, qualification, written exemption from, or order of or filing with any Governmental Authority, or of or with any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the NYSE), or approval of the holders of NEP Common Units or Series A Preferred Units, or any further approval of the Class A Purchaser or any of its Affiliates.
“Contract” means any contract, agreement, indenture, note, bond, mortgage, deed of trust, loan, instrument, lease, license, commitment, or other arrangement, understanding, undertaking, or obligation, whether written or oral.
“Contributed Assets” means those limited liability company interests specified in Section II of Schedule B hereto, which shall be contributed (or deemed to be contributed) by the Class A Purchaser to the Company prior to the Initial Closing.
“Contributed Assets EWC” means the amount of Estimated Working Capital (as such term is defined and used in the Contribution Agreement) used to determine the Contribution Amount.
“Contributed Project Companies” means those entities listed in Section II of Schedule B hereto under the heading “Project Company.”
“Contributed Project Companies Project Model” means the financial model for the Contributed Project Companies.
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“Contribution Agreement” means that certain Contribution Agreement to be entered into prior to the Initial Closing within three (3) Business Days immediately preceding the Initial Closing Date, by and between the Class A Purchaser and the Company, substantially in the form attached hereto as Exhibit D.
“Contribution Amount” means the “Final Contribution Amount,” as that term is defined and used in the Contribution Agreement.
“Controlled Subsidiary” has the meaning set forth in the A&R LLC Agreement.
“Conversion Units” means the NEP Common Units to be issued upon conversion of Issued NEP Non-Voting Units, upon the terms and subject to the conditions of the NEP Partnership Agreement.
“COVID-19” means both the viral pneumonia named coronavirus disease 2019 (COVID-19) by the World Health Organization and the virus named Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) by the International Committee on Taxonomy of Viruses and any mutations thereof.
“COVID-19 Effect” means any (i) required or recommended quarantines, travel restrictions, or social distancing, in each case, issued by a Governmental Authority, (ii) factory shutdowns or slowdowns, workplace or worksite shutdowns or slowdowns or work from home requirements or recommendations, or shipment interruptions or slowdowns, in each case, related to or resulting from COVID-19, (iii) other measures initiated or occurring in response to COVID-19 and (iv) other events or conditions related to or resulting from COVID-19.
“Credit Agreement” means the fully executed credit agreement, dated as of the Execution Date among KKR Genesis TL Parent LLC, the Class B Purchaser Representative, the lenders party thereto, and MUFG Bank, Ltd., as administrative agent, as may be amended, amended and restated, supplemented, or otherwise modified in accordance with Section 5.04(a).
“Credit Support Obligations” has the meaning set forth in Section 5.10.
“Debt Financing” has the meaning specified in Section 4.06(a).
“Debt Financing Terms” means the terms of the Debt Financing expressly provided for pursuant to the terms of the Credit Agreement, but solely with respect to (a) the principal amount available to be funded under any or all of the following: (i) the Funding Date Term Loan Facility, (ii) the Delayed Draw Loans, and (iii) the DSR LC Obligations (each as defined in the Credit Agreement), in each case, up to the maximum amount expressly permitted and provided for by the Credit Agreement, and (b) the amount set forth on the Target Debt Balance schedule and/or the Target Reserve Balance schedule, in each case, with respect to any Monthly Payment Date.
“Debt for Borrowed Money” means, with respect to any Person, at any date of determination, (i) all items that, in accordance with GAAP, would be classified as indebtedness on a consolidated balance sheet of such Person at such date, including any obligation of such Person under a Capitalized Lease Obligation, and (ii) any Synthetic Lease Obligations of such Person at such date; provided, however, that, for all purposes of this Agreement, Debt for Borrowed Money shall not include any obligations under any Non-Capitalized Lease Obligations, including any Land Contracts, or any obligations in connection with Deferred Payments.
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“Deferred Payments” shall have the meaning set forth in the Pine Brooke Company Project Financing Documents and any comparable terms (having substantially the same meaning) contained in any Golden Plains Tax Equity Financing Documents.
“Deficit Class B Purchase Price Offset” has the meaning set forth in Section 2.16(e).
“Deficit Purchase Price Amount” has the meaning set forth in Section 2.16(e).
“Delaware LLC Act” means the Delaware Limited Liability Company Act.
“Delaware LP Act” means the Delaware Revised Uniform Limited Partnership Act.
“Delay Notice” has the meaning set forth in the Sponsor Pine Brooke PSA.
“Disclosure Letter” means the disclosure letter delivered by the Company, NEP and the Class A Purchaser to the Class B Purchasers simultaneously with the execution of this Agreement.
“Dispute Notice” has the meaning set forth in Section 2.16(b)(i).
“Drop-Dead Date” means June 30, 2021, subject to extension pursuant to Section 7.01(a)(iii) or Section 7.01(b)(ii)(3).
“Elk City I Wind Project” has the meaning specified on Schedule J hereto.
“Environmental Report” means a copy of a Phase 1 Environmental Site Assessment Report with respect to each Project, dated no earlier than six (6) months prior to the Initial Closing Date or Additional Closing Date, as applicable, and which otherwise remains valid within the applicable American Society for Testing and Materials (ASTM) standards.
“Equity Commitment Letter” has the meaning specified in Section 4.06(a).
“Equity Financing” has the meaning specified in Section 4.06(a).
“Excess Purchase Price Amount” has the meaning set forth in Section 2.16(e).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Date” means November 2, 2020.
“Execution Date Base Case Levered Return” means the rate of return set forth in cell “C25” in the worksheet labeled “Model - 2020” in the Execution Date Portfolio Project Model.
“Execution Date Levered Hold Return” means the rate of return set forth in cell “C22” in the worksheet labeled “Model - 2020” in the Execution Date Portfolio Project Model.
“Execution Date Minimum Buyout Levered Return” means the rate of return set forth in cell “C29” in the worksheet labeled “Model – 2020” in the Execution Date Portfolio Project Model.
“Execution Date Portfolio Project Model” has the meaning specified in Section 2.16(a).
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
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“FERC” means the Federal Energy Regulatory Commission, or its successor.
“Financing” has the meaning specified in Section 4.06(a).
“Financing Arrangements” has the meaning specified in Section 5.04(b).
“Financing Definitive Agreements” has the meaning specified in Section 5.04(a).
“Financing Parties” means those lenders, arrangers, and agents and other financial institutions and investors that are or may become parties to the Credit Agreement and are commercial banks and their Affiliates or a Class B Purchaser or its Affiliates.
“Financing Related Party” means the Financing Parties or any of their respective former, current or future general or limited partners, stockholders, managers, members, directors, officers, Affiliates, affiliated (or commonly advised) funds, representatives, agents, assignees, and successors of any of the foregoing.
“First Distribution Adjustment Period” has the meaning set forth in the A&R LLC Agreement.
“Force Majeure” means any event beyond the Company’s, the Class A Purchaser’s or NEP’s reasonable control (including, but not limited to any, or any combination of, any COVID-19 Effects, any acts, regulations or orders of Governmental Authorities, civil disorder, disasters, acts of terrorism, acts of war or hostilities, acts of God, fires, floods, tornadoes, earthquakes or other emergency conditions), which, individually or in the aggregate, prevent or materially impede the Company’s, the Class A Purchaser’s or NEP’s ability to perform their respective obligations hereunder resulting in or contributing to the failure of any condition in Section 2.03 or Section 2.04 to be satisfied prior to the Drop-Dead Date.
“Fraud” means the making of a representation, warranty, or covenant contained in this Agreement by a Person with a specific intent to induce such other Person to enter into this Agreement and (a) in the case of a representation, such representation contained a material misstatement or omission at the time it was made, and the Person making or giving the representation had actual Knowledge (and not imputed or constructive knowledge), of such material misstatement or omission at the time it was made, (b) such Person had the specific intent to induce such other Person to whom such representation, warranty, or covenant was made or given to enter into this Agreement, and (c) such other Person to whom such representation, warranty, or covenant was made or given reasonably relied on such materially inaccurate representation, warranty, or covenant in entering into this Agreement and suffered injury as a result thereof. For the avoidance of doubt, (i) the term “Fraud” does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud, or any torts (including any claim for fraud) based on negligence or recklessness, and (ii) only the Party who committed Fraud shall be responsible for such Fraud and only to the Party alleged to have suffered from such alleged Fraud.
“GAAP” means generally accepted accounting principles in the United States of America as of the Execution Date, applied on a consistent basis during the period covered thereby; provided that, for the financial statements of NEP prepared as of a certain date, GAAP referenced therein shall be GAAP as of the date of such financial statements.
“Genesis Available Cash” means “Available Cash” as such term is defined in the A&R LLC Agreement.
“Genesis Solar Project” has the meaning specified on Schedule J hereto.
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“Golden Plains Class A Membership Interests” means the Class A Member Membership Interests (as defined in the Golden Plains Company LLC Agreement) of the Golden Plains Company.
“Golden Plains Company” means Golden Plains, LLC, a Delaware limited liability company.
“Golden Plains Company LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of Golden Plains Company to be entered into prior to the Initial Closing, as may be amended, restated, or supplemented from time to time.
“Golden Plains Entities” means, collectively, Golden Plains Holdings, Golden Plains Company and each of their respective Subsidiaries.
“Golden Plains Holdings” means Golden Plains Class A Holdings, LLC, a Delaware limited liability company.
“Golden Plains Paygo Payments” means the proceeds received by Golden Plains Holdings in respect of any capital contributions made by Tax Equity Investors with respect to PTCs, pursuant to the terms of the Golden Plains Company LLC Agreement.
“Golden Plains Project” means, as applicable, any of Xxxxxxx Wind Project, Northern Colorado I Wind Project, and Northern Colorado II Wind Project and, collectively, all of the foregoing are referred to herein as the “Golden Plains Projects”.
“Golden Plains Targeted Flip Date” shall have the meaning ascribed to the term “Targeted Flip Date” in the Golden Plains Company LLC Agreement prior to consummation of the Golden Plains Tax Equity Financing.
“Golden Plains Tax Equity Financing” means the transactions contemplated by the Golden Plains Tax Equity Financing Documents.
“Golden Plains Tax Equity Financing Change” means an event in which any portion of the Golden Plains Tax Equity Financing shall have been consummated after the Execution Date on economic terms that affect the value of the Golden Plains Tax Equity Inputs (as compared to the value of such Golden Plains Tax Equity Inputs set forth in the Execution Date Portfolio Project Model) solely as a result of a change in (i) the amount or timing of Projected Golden Plains Class A Cash Flow, (ii) the amount or timing of Golden Plains Paygo Payments (or the calculation thereof), (iii) the Golden Plains Targeted Flip Date or (iv) the percentage of net profits or net losses of the Golden Plains Company allocated to Golden Plains Class A Membership Interests.
“Golden Plains Tax Equity Financing Documents” means one or more membership interest purchase agreements, equity capital contribution agreements or other definitive agreements with respect to the acquisition of Tax Equity Interests in Golden Plains Company with respect to the Xxxxxxx Wind Project, the Northern Colorado I Wind Project and the Northern Colorado II Wind Project, as applicable, in each case, to be entered into following the Execution Date by and among the applicable Tax Equity Investors, Golden Plains Holdings and Golden Plains Company.
“Golden Plains Tax Equity Inputs” means the inputs to the Portfolio Project Model in the worksheet labeled “Resource Cases,”, in rows 84-87 and rows 97-100, in each case, subject to adjustment pursuant to Section 2.16 and consistent with the assumptions and procedures set forth in Schedule I.
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“Governmental Authority” means, with respect to a particular Person, any country, state, county, city, and political subdivision in which such Person or such Person’s property is located or that exercises valid jurisdiction over any such Person or such Person’s property, and any court, agency, arbitration body, tribunal, department, commission, board, bureau, or instrumentality of any of them, and any monetary authority that exercises valid jurisdiction over any such Person or such Person’s property. Unless otherwise specified, all references to Governmental Authority herein with respect to the Company Entities means a Governmental Authority having jurisdiction over the Company Entities or any of their respective properties.
“Governmental Authorization” means any authorization, approval, order, license, certificate, determination, registration, Permit, or consent required of or granted by, or any notice required to be delivered to or filed with, any Governmental Authority, including the FERC and, to the extent applicable, the expiration of any waiting period required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended.
“Harmony Solar Project” has the meaning specified on Schedule J hereto.
“Hedge” means any hedging transactions relating to interest rates under the Credit Agreement, including any hedge, option, swap, future or future contract.
“Indebtedness” means any amount payable by a Person as debtor, borrower, issuer, guarantor, or otherwise pursuant to (a) an agreement or instrument involving or evidencing money borrowed, or the advance of credit, including financings by Subsidiaries of such Person, and the face amount of any letter of credit supporting the repayment of indebtedness for borrowed money issued for the account of such Person and obligations under letters of credit and agreements relating to the issuance of letters of credit or acceptance of financing (in each case, only to the extent undrawn or, in the case of any drawing, not cash collateralized or reimbursed within two (2) Business Days of the date drawn); (b) indebtedness of a third party described in clauses (a), (c), or (d) of this definition (i) that is guaranteed by such Person or its Subsidiaries or (ii) that is secured by any Lien on assets owned or acquired by such Person or its Subsidiaries, whether or not the indebtedness secured thereby has been assumed by such Person or its Subsidiaries; provided that, in the case of any Indebtedness described in this clause (ii), the amount of such Indebtedness shall be deemed to be the lesser of the outstanding principal amount of such Indebtedness or the fair market of the assets of such Person or any of its Subsidiaries securing such Indebtedness; (c) purchase-money indebtedness and capital lease obligations classified as such in accordance with GAAP (other than as a result of the adoption or implementation of Accounting Standards Codification No. 842 or any successor provision or amendment or other modification thereto); or (d) obligations evidenced by bonds, debentures, notes, or other instruments of debt securities.
“Indemnified Party” has the meaning specified in Section 6.03(b).
“Indemnifying Party” has the meaning specified in Section 6.03(b).
“Independent Expert” means Duff & Xxxxxx or, if Duff & Xxxxxx is unwilling or unable to serve as Independent Expert under this Agreement, such other independent, internationally recognized accounting, valuation or consultant firm as shall be mutually agreed upon by the Company, the Class A Purchaser, NEP and the Class B Purchaser Representative.
“Initial Acquired Assets” means those assets specified in Section I.A of Schedule B hereto.
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“Initial Acquired Project Companies” means those entities listed in Section I.A of Schedule B hereto under the heading “Project Company”.
“Initial Additional Closing Portfolio Project Model” has the meaning specified in Section 2.16(b).
“Initial Aggregate Class B Purchase Price” means such aggregate Class B Purchase Price payable by the Class B Purchasers to the Company in respect of the Initial Aggregate Class B Purchased Units, as shall be set forth in the Notice of Initial Closing delivered in accordance with Section 2.02(a) or Section 2.02(b), which amount, in no event, shall (i) be less than seven hundred and fifty million U.S. dollars ($750,000,000) or (ii) exceed the Class B Purchase Price.
“Initial Aggregate Class B Purchased Units” means such number of Class B Units as is equal to the product (rounded to the nearest whole unit) obtained by multiplying (x) the number of Aggregate Class B Purchased Units by (y) the quotient determined by dividing (i) the Initial Aggregate Class B Purchase Price by (ii) the Class B Purchase Price.
“Initial Class B Purchased Units Return” has the meaning specified in Section 2.17.
“Initial Class B Units Sale” has the meaning set forth in the recitals of this Agreement.
“Initial Closing” means the consummation of the issuance and sale of the Initial Aggregate Class B Purchased Units.
“Initial Closing Base Case Levered Return” means the rate of return set forth in cell “C25” in the worksheet labeled “Model – 2020” in the Initial Closing Portfolio Project Model.
“Initial Closing Date” means the date the Initial Closing is actually consummated pursuant to Section 2.02(a).
“Initial Closing Dispute Notice” has the meaning set forth in Section 2.16(a)(i).
“Initial Closing Distribution Amount” means an amount in cash equal to the excess of the Initial Aggregate Class B Purchase Price over the Xxxxxx Purchase Price; provided, however, that, in the event of a Xxxxxx Holdback Event, the Initial Closing Distribution Amount shall equal the Initial Aggregate Class B Purchase Price.
“Initial Closing Levered Hold Return” means the rate of return set forth in cell “C22” in the worksheet labeled “Model – 2020” in the Initial Closing Portfolio Project Model.
“Initial Closing Minimum Buyout Levered Return” means the rate of return set forth in cell “C29” in the worksheet labeled “Model – 2020” in the Initial Closing Portfolio Project Model.
“Initial Closing Portfolio Project Model” means the Initial Updated Portfolio Project Model, as finally determined pursuant to Section 2.16(a), Section 2.16(c) or Section 2.16(d), as applicable, and in a manner consistent with the assumptions and procedures set forth in Schedule I.
“Initial Individual Class B Purchase Price” means, with respect to each Class B Purchaser set forth in Section II of Schedule A hereto, the price paid to the Company by such Class B Purchaser in respect of the Initial Individual Class B Purchased Units purchased by such Class B Purchaser at the Initial Closing, which amount shall equal such Class B Purchaser’s Pro Rata Share set forth in Section II of Schedule A hereto, multiplied by the Initial Aggregate Class B Purchase Price.
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“Initial Individual Class B Purchased Units” means, with respect to each Class B Purchaser set forth in Section II of Schedule A hereto, such number of Class B Units to be purchased by such Class B Purchaser from the Company at the Initial Closing, which number shall be equal to such Class B Purchaser’s Pro Rata Share set forth in Section II of Schedule A hereto, multiplied by the total number of Initial Aggregate Class B Purchased Units.
“Initial Issuance” has the meaning set forth in Section 2.01(d).
“Initial Issuance Date” has the meaning set forth in Section 2.01(d).
“Initial Updated Portfolio Project Model” has the meaning specified in Section 2.16(a).
“Inside Date” means December 1, 2020; provided, however, that if, at any time prior to December 1, 2020, a Delay Notice shall have been delivered pursuant to the Sponsor Pine Brooke PSA, then the Inside Date may be extended by written notice delivered by the Class A Purchaser or the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers representing the right to acquire at least a majority of the Initial Aggregate Class B Purchased Units at the Initial Closing) to each other Party, in either case, until the earlier to occur of (a) March 31, 2021 or (b) such date on which the parties to the Sponsor Pine Brooke PSA mutually agree in writing on the effects on the terms of the transactions contemplated by the Sponsor Pine Brooke PSA resulting from the matters set forth in such Delay Notice (as set forth in written notice thereof delivered to the Class A Purchaser and the Class B Purchaser Representative in accordance with the Sponsor Pine Brooke PSA).
“Interim Additional Closing Base Case Levered Return” means the Initial Closing Base Case Levered Return, updated to reflect any Additional Closing Model Input Updates in connection with the Additional Closing or any Xxxxxx Return pursuant to Section 2.16, and in a manner consistent with the assumptions and procedures set forth in Schedule I.
“Interim Additional Closing Levered Hold Return” means the Initial Closing Levered Hold Return, updated to reflect any Additional Closing Model Input Updates in connection with the Additional Closing or any Xxxxxx Return, pursuant to Section 2.16, and in a manner consistent with the assumptions and procedures set forth in Schedule I.
“Interim Additional Closing Minimum Buyout Levered Return” means the Initial Closing Minimum Buyout Levered Return, updated to reflect any Additional Closing Model Input Updates in connection with the Additional Closing or any Xxxxxx Return, pursuant to Section 2.16, and in a manner consistent with the assumptions and procedures set forth in Schedule I.
“Interim Additional Closing Portfolio Project Model” has the meaning specified in Section 2.16(c)(iii).
“Interim Initial Closing Portfolio Project Model” has the meaning specified in Section 2.16(c)(ii).
“Interim Period” means the period of time commencing on the Execution Date and ending on the earlier to occur of (a) the Initial Closing Date, and (b) the date on which this Agreement shall be validly terminated in accordance with the terms hereof.
“Issued NEP Non-Voting Units” means the NEP Non-Voting Units to be issued to the Class B Purchasers or their Affiliates upon exercise of the Call Option, the NEP Change of Control Option, or
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the Class B COC Option, each pursuant to the terms of the A&R LLC Agreement and the NEP Partnership Agreement.
“Knowledge” means, with respect to each of the Company, the Class A Purchaser, and NEP, the actual knowledge of those individuals listed on Schedule C(1) hereto, in their capacity as employees of XXXX, and, with respect to the Class B Purchasers, the actual knowledge of those individuals listed on Schedule C(2) hereto.
“Land Contract” means all material deeds, leases, sublease or sub-sublease, letting, license, concession or other Contract (whether written or oral and whether now or hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy, all or any portion of any space in a project site, easements, options and other real property estates, interests or rights in and to a project site held by any Project Company.
“Law” means any federal, state, local, or foreign order, writ, injunction, judgment, settlement, award, decree, statute, law (including common law), rule, or regulation.
“Lien” means any mortgage, pledge, lien (statutory or otherwise), encumbrance, security interest, security agreement, conditional sale, trust receipt, charge, or claim, or a lease, consignment, or bailment, preference, or priority, assessment, deed of trust, easement, servitude, or other encumbrance upon or with respect to any property of any kind (including any Capitalized Lease Obligation or Synthetic Lease Obligation), but excluding any of the foregoing arising under any Non-Capitalized Lease Obligation.
“Limited Guaranty” has the meaning set forth in the recitals to this Agreement.
“Liquidity Event” has the meaning set forth in the A&R LLC Agreement.
“Material Adverse Effect” means any change, event, or effect that, individually or together with any other changes, events, or effects, has had or would reasonably be expected to have a material adverse effect on (a) the business, properties, assets, liabilities, financial condition, or results of operations of NEP and its Subsidiaries, taken as a whole, on the one hand, or the Company and its Subsidiaries, taken as a whole, on the other hand or (b) the ability of any of the Company Entities, as applicable, to perform its obligations under the Transaction Documents; provided, however, that a Material Adverse Effect shall not include any adverse effect on the foregoing to the extent such adverse effect results from, arises out of, or relates to (i) a general deterioration in the economy or changes in the general state of the markets or industries in which any one of the Company Entities operates (including, for the avoidance of doubt, adverse changes (A) in commodity prices, (B) in capital spending by participants or their customers in the renewable energy or natural gas energy sector, and (C) otherwise associated with changes in the renewable or natural gas energy sector and the resulting effect on NEP and its Subsidiaries, taken as a whole, on the one hand, or the Company and its Subsidiaries, taken as a whole, on the other hand), except, with respect to this clause (i), to the extent that NEP and its Subsidiaries, taken as a whole, on the one hand, or the Company and its Subsidiaries, taken as a whole, on the other hand, are adversely affected in a disproportionate manner as compared to other industry participants, (ii) any deterioration in the condition of the capital markets or any inability on the part of the Company Entities to access the capital markets, (iii) the outbreak or escalation of hostilities involving the United States, the declaration by the United States of a national emergency, acts of war (whether or not declared) or the occurrence or escalation of any other calamity or crisis, including acts of terrorism, (iv) any epidemic, pandemic, disease outbreak, hurricane, flood, tornado, earthquake or other natural disaster, or the escalation or worsening of any of the foregoing (including any COVID-19 Effect), (v) any change in accounting requirements or principles imposed upon the Company Entities or
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their respective businesses or any change in applicable Law, or the interpretation thereof, (vi) any change in the credit rating or outlook of any of the Company Entities or any of their securities (except that the underlying causes of any such changes may be considered in determining whether a Material Adverse Effect has occurred), (vii) changes in the market price or trading volume of the NEP Common Units (except that the underlying causes of any such changes may be considered in determining whether a Material Adverse Effect has occurred), (viii) any failure of the Company or NEP to meet any internal or external projections, forecasts, or estimates of revenue or earnings for any period (except that the underlying causes of any such failures may be considered in determining whether a Material Adverse Effect has occurred) or (ix) the filing of the bankruptcy cases of PG&E Corporation and its Affiliate, Pacific Gas and Electric Company, that is jointly administered in the United States Bankruptcy Court for the Northern District of California under case number 19-30088 together with all related adversary actions, suits, claims, and proceedings, including to the extent the foregoing may be an underlying cause of any other change, event, or effect described in any of clauses (vi), (vii), or (viii) hereof.
“Membership Interests” means the Company’s Membership Interests, which, as of the Initial Closing Date, shall consist of Class A Units and Class B Units, as more fully described in the A&R LLC Agreement.
“MIPA Guaranty” means that certain MIPA Guaranty, dated as of May 20, 2020, made by NextEra Energy Resources, LLC, a Delaware limited liability company, in favor of BAL Investment & Advisory, Inc., a Delaware corporation.
“Money Laundering Laws” means the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the anti-money laundering statutes and any related or similar rules, regulations, or guidelines issued, administered, or enforced by any Governmental Authority.
“National Securities Exchange” means an exchange registered with the Commission under Section 6(a) of the Exchange Act (or any successor to such Section).
“XXXX” means NextEra Energy Resources, LLC, a Delaware limited liability company.
“Negotiation Period” has the meaning set forth in Section 2.16(c).
“NEP” has the meaning set forth in the introductory paragraph of this Agreement.
“NEP Acquisitions” means NextEra Energy Partners Acquisitions, LLC, a Delaware limited liability company.
“NEP Change of Control Option” has the meaning set forth in the A&R LLC Agreement.
“NEP Common Units” means Common Units, as that term is defined in the NEP Partnership Agreement.
“NEP GP” means NextEra Energy Partners GP, Inc., a Delaware corporation and the general partner of NEP.
“NEP Non-Voting Units” means non-voting common units of NEP that shall have the same economic rights as the NEP Common Units, except that such non-voting common units shall have no voting rights whatsoever and shall not be listed on any National Securities Exchange. Each Issued NEP Non-Voting Unit shall, subject to and in accordance with the terms of the NEP Partnership Agreement, automatically convert into one Conversion Unit upon the terms of and subject to the conditions set forth in the NEP Partnership Agreement.
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“NEP Obligations” means the obligations of NEP specifically contained in Sections 2.01(b), 2.01(c), 2.03, 2.04, 2.06, 2.07(c), 2.13, 5.01, 5.02, 5.03, 5.04, 5.05(d), 5.05(e), 6.01, 6.03, 7.01, 7.02, and 7.03(c), Article III, and Article VIII.
“NEP OpCo” means NextEra Energy Operating Partners, LP, a Delaware limited partnership.
“NEP Partnership Agreement” means the Fifth Amended and Restated Agreement of Limited Partnership of NEP, dated as of November 12, 2019, as amended from time to time in accordance with the terms thereof.
“NEP Related Parties” has the meaning specified in Section 6.02(a).
“NEP SEC Documents” means NEP’s forms, registration statements, reports, schedules, statements, and exhibits filed with the Commission by it under the Exchange Act or the Securities Act, as applicable.
“NEP Subsidiaries” means, collectively, the Subsidiaries of NEP.
“Non-Capitalized Lease Obligation” means a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP; provided, however, that, for the avoidance of doubt, each straight-line lease, operating lease and Land Contract (including, without limitation, the Pine Brooke Material Land Contracts) shall be considered a Non-Capitalized Lease Obligation for all purposes of this Agreement.
“Northern Colorado I Wind Project” has the meaning specified on Schedule J hereto.
“Northern Colorado II Wind Project” has the meaning specified on Schedule J hereto.
“Notice of Additional Closing” has the meaning specified in Section 2.08(a).
“Notice of Initial Closing” has the meaning specified in Section 2.02(a).
“NYSE” means the New York Stock Exchange.
“Organizational Documents” means, as applicable, an entity’s agreement of limited partnership, certificate of limited partnership, limited liability company agreement, certificate of formation, certificate or articles of incorporation, bylaws, or other similar organizational documents.
“Parties” means the Company, the Class A Purchaser, the Class B Purchasers (including the Class B Purchaser Representative) set forth in Schedule A hereto (as may be amended from time to time in accordance with the terms hereof) and, solely to the extent of the NEP Obligations set forth herein, NEP.
“Permits” means any and all necessary licenses, authorizations, permits, variances, waivers, exemptions, consents, and approvals.
“Permitted Lien” means: (a) with respect to equity interests of any Person, any restriction (including transfer restrictions) arising under applicable securities Laws or the Organizational Documents of such Person or of any Subsidiary or Tax Equity Entity in which such Person owns an equity interest; and (b) with respect to any other assets, property or rights of any Person, (i) statutory
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Liens for Taxes (A) not yet due or delinquent or (B) the validity of which are being contested in good faith by appropriate proceedings and for which adequate reserves have been specifically established on the financial statements of such Person to the extent required under GAAP; (ii) mechanics’, materialmen’s, carriers’, workers’, repairers’ and other similar Liens arising or incurred in the ordinary course of business relating to obligations that are not yet due on the part of the applicable Person (or its Subsidiary) or the validity of which are being contested in good faith, or for which adequate reserves have been specifically established on the financial statements of such Person in accordance with GAAP; (iii) zoning, entitlement, environmental or conservation restrictions and other land use and environmental regulations imposed by Governmental Authorities so long as such restrictions and regulations do not materially impair the value or use of the property affected and are not violated by the current use or occupancy or such Person’s conduct of its business at the applicable property; (iv) covenants and restrictions set forth in this Agreement or in any other Transaction Document; (v) Liens arising in the ordinary course of business by operation of Law with respect to a liability that is not yet due or delinquent or which is being contested diligently in good faith by such Person; (vi) non-exclusive licenses with respect to intellectual property granted in the ordinary course of business; (vii) terms and conditions of any Land Contract (including the Pine Brooke Material Land Contracts) or Non-Capitalized Lease Obligations in which such Person is a party as in effect on the date hereof; (viii) Liens to be released at or prior to the Initial Closing; (ix) Liens listed as exceptions in title insurance policies related to a Project made available to the Class B Purchaser Representative prior to the Execution Date; (x) Liens identified in surveys related to a Project made available to the Class B Purchaser Representative prior to the Execution Date; (xi) defects, easements, servitudes, rights-of-way, restrictions (including municipal and other governmental restrictions), irregularities, clouds on title, statutory Liens and other encumbrances (other than Liens securing Debt for Borrowed Money) that do not materially impair the value or use of the property affected and that do not individually or in the aggregate materially interfere with or detract from any such Person’s ability to conduct business at the applicable property; (xii) Liens arising under the Pine Brooke Tax Equity Financing Documents, Golden Plains Tax Equity Financing Documents, Golden Plains Company LLC Agreement or any other document entered into in connection with any of the foregoing; and (xiii) Liens created during the Interim Period, solely to the extent permitted pursuant to the terms of Section 5.01.
“Person” means any individual, corporation, company, voluntary association, partnership, joint venture, trust, limited liability company, unincorporated organization, government, or any agency, instrumentality, or political subdivision thereof, or any other form of entity.
“Pine Brooke Available Cash” means “Available Cash” as such term is defined in the Pine Brooke Holdings A&R LLC Agreement.
“Pine Brooke Class C Pro Rata Share” means “Pro Rata Share”, as such term is defined in the Second Amended and Restated Limited Liability Company Agreement of Pine Brooke Holdings.
“Pine Brooke (Class C) PSA Appendix” means that certain Appendix to the 2020 Amendment to Asset Purchase Agreement providing for the sale by Sellco of the Initial Acquired Assets to NEP Acquisitions.
“Pine Brooke Company” means Pine Brooke, LLC, a Delaware limited liability company.
“Pine Brooke Company A&R LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of Pine Brooke Company, by and among the Company and each of the Pine Brooke Company Class B Members party thereto, dated as of September 24, 2020, as may be amended, restated, or supplemented from time to time.
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“Pine Brooke Company Class A Membership Interests” means the Class A Member Membership Interests (as defined in the Pine Brooke Company A&R LLC Agreement) of Pine Brooke Company.
“Pine Brooke Company Class B Membership Interests” has the meaning specified in the Pine Brooke Company A&R LLC Agreement.
“Pine Brooke Company Portfolio Project Model” means the financial model for the Pine Brooke Company.
“Pine Brooke Company Project Financing Documents” means the “Project Financing Documents” (as defined in the Sponsor Pine Brooke PSA).
“Pine Brooke Holdings” means Pine Brooke Class A Holdings, LLC, a Delaware limited liability company.
“Pine Brooke Holdings A&R LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of Pine Brooke Holdings, to be entered into by and among Pine Brooke Funding, LLC, a Delaware limited liability company, KKR Pine Brooke Issuer LLC, a Delaware limited liability company, and NEP Acquisitions and the Company, as members, on or about the Initial Closing Date, as may be amended, restated, or supplemented from time to time.
“Pine Brooke Holdings Class C Membership Interests” has the meaning specified in the Pine Brooke Holdings A&R LLC Agreement.
“Pine Brooke Material Land Contracts” has the meaning given to “Material Land Contracts” in the Sponsor Pine Brooke PSA.
“Pine Brooke Paygo Payments” means the proceeds received by Pine Brooke Holdings in respect of any capital contributions made by Tax Equity Investors with respect to PTCs, pursuant to Section 3.2(b)(ii) of the Pine Brooke Company A&R LLC Agreement.
“Pine Brooke Project” means, as applicable, any of the Blue Summit III Wind Project, the Harmony Solar Project, the Ponderosa Wind Project, the Saint Solar Project, the Xxxxxxx Airport Solar Project, the Soldier Creek Wind Project, and the Xxxxxx Creek Solar Project and, collectively, all of the foregoing are referred to herein as the “Pine Brooke Projects.”
“Pine Brooke Tax Equity Financing” means the “Tax Equity Financing” (as such term is defined in the Sponsor Pine Brooke PSA).
“Pine Brooke Tax Equity Financing Change” means an event in which any portion of the Pine Brooke Tax Equity Financing shall have been consummated after the Execution Date on economic terms that affect the value of the Pine Brooke Tax Equity Inputs (as compared to the value of such Pine Brooke Tax Equity Inputs set forth in the Execution Date Portfolio Project Model) solely as a result of a change in (i) the amount or timing of Projected Pine Brooke Class C Cash Flow, (ii) the amount or timing of Pine Brooke Paygo Payments (or the calculation thereof), (iii) the Targeted Flip Date (as such term is defined in the Pine Brooke Company A&R LLC Agreement), or (iv) the percentage of net profits or net losses of the Pine Brooke Company allocated to the Pine Brooke Company Class A Membership Interests.
“Pine Brooke Tax Equity Financing Documents” means, collectively, the Project Financing Documents and Tax Equity Agreements (each as defined in the Sponsor Pine Brooke PSA).
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“Pine Brooke Tax Equity Inputs” means the inputs to the Portfolio Project Model in the worksheet labeled “Resource Cases”, in rows 90-93 and rows 103-106, in each case, subject to adjustment pursuant to Section 2.16 and in a manner consistent with the assumptions and procedures set forth in Schedule I.
“Ponderosa Wind Project” has the meaning specified on Schedule J hereto.
“Portfolio Project Model” means the financial model for the Project Companies that consolidates the Pine Brooke Company Portfolio Project Model with the Xxxxxx Project Model and each of the Contributed Project Companies Project Model into one set of outputs.
“Post-Closing Working Capital Adjustment Payment” shall have the meaning set forth in the Pine Brooke (Class C) PSA Appendix.
“Power Purchase Agreement” means any purchase and sale agreement with respect to the offtake of electricity, capacity, and ancillary services and any contract for differences, in each case, to which any Project Company is a party and is set forth on Schedule K.
“Pre-Closing Model Input Updates” means any changes to the value of the inputs as set forth in any cell highlighted in yellow (or in the case of a change described in clause (v) below, in blue) in the Portfolio Project Model, from the values set forth therein in the Execution Date Portfolio Project Model, to the extent such changes result from (i) the Bring-Down Consultant Reports, (ii) a Pine Brooke Tax Equity Financing Change, (iii) a Golden Plains Tax Equity Financing Change, (iv) any Project (other than the COD-Exempt Projects and Xxxxxx Solar Project) not achieving Commercial Operation on or prior to the applicable date set forth in the Execution Date Portfolio Project Model with respect to such Project, (v) (A) changes to the Debt Financing that are contemplated by the Credit Agreement or other Loan Documents and expressly permitted and provided for pursuant to the terms thereof (including any obligation of the Class B Purchaser to pay the Ticking Fees, solely to the extent resulting from the failure of the Initial Closing to occur prior to December 31, 2020) and (B) an increase in fees and costs pursuant to the terms of any Hedge entered into by the Class B Purchaser in connection with the Debt Financing as a result of the failure of the Initial Closing to occur prior to December 31, 2020, (vi) a Xxxxxx Holdback Event and the resulting removal of the Xxxxxx Solar Project and all Additional Closing Model Input Updates pursuant to Section 5.08, (vii) any damage or destruction to the assets of the Project Companies occurring prior to the Initial Closing Date resulting from casualty loss, to reflect any reduction in the amount or timing of Projected Class B Cash Flow resulting from such casualty loss until repairs or replacement of such assets are made, any expenditures needed to make such repairs or replacements, and the application of any related insurance proceeds or (viii) the amount of fees and expenses for counsel and other advisors to the Agent, the lenders under the Credit Agreement or any counterparty to any Hedge that are required to be reimbursed to such parties exceeding the amount of such fees and expenses included as part of the Reimbursement Amount in the Execution Date Portfolio Project Model (it being understood and agreed that the changes under clauses (ii) and (iii) have not been highlighted in the Portfolio Project Model to allow the definitions of Pine Brooke Tax Equity Financing Change and Golden Plains Tax Equity Financing Change to govern such changes for purposes of the definition of Pre-Closing Model Input Updates).
“Pro Rata Share” means, with respect to each Class B Purchaser, the percentage set forth opposite the name of such Class B Purchaser (i) with respect to the Initial Individual Class B Purchased Units to be purchased by such Class B Purchaser at the Initial Closing, on Section II of Schedule A hereto under the column entitled “Pro Rata Share”, as may be amended prior to the Initial Closing in accordance with Section 2.01(j) and (ii) with respect to the Additional Individual Class B Purchased Units (if any) to be purchased by such Class B Purchaser at the Additional Closing (if any), on
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Section III of Schedule A hereto under the column entitled “Pro Rata Share”, as may be amended prior to the Additional Closing (if any) in accordance with Section 2.01(j).
“Project” means, (i) with respect to each Initial Acquired Project Company, its Initial Acquired Project Company, and (ii) with respect to Xxxxxx and each Contributed Project Company, has the meaning specified on Schedule J hereto.
“Project Companies” means, collectively, the Acquired Project Companies, the Contributed Project Companies and the Project Company Holdcos.
“Project Company Holdco” means, with respect to each Project Company, such Person (if any) listed opposite the name of such Project Company under the heading “Project Company Holdco” in Schedule B hereto.
“Projected Class B Cash Flow” means the aggregate amount of pro forma distributions of Available Cash to be received in respect of all outstanding Class B Membership Interests over the life of the Projects, as set forth in the Execution Date Portfolio Project Model.
“Projected Golden Plains Class A Cash Flow” means the aggregate amount of pro forma distributions of Genesis Available Cash to be received in respect of all outstanding Golden Plains Class A Membership Interests over the life of the Golden Plains Projects, as set forth in the Execution Date Portfolio Project Model.
“Projected Pine Brooke Class C Cash Flow” means the aggregate amount of pro forma distributions of Pine Brooke Available Cash to be received in respect of all outstanding Pine Brooke Holdings Class C Membership Interests over the life of the Pine Brooke Projects, as set forth in the Execution Date Portfolio Project Model.
“Projected Wilmot Cash Flow” means the aggregate amount of pro forma distributions of Genesis Available Cash projected to be received in respect of all Wilmot Cash Flow over the life of the Xxxxxx Solar Project, as set forth in the Initial Closing Portfolio Project Model.
“PSA Closing” means the “Closing” (as such term is defined in the Sponsor Pine Brooke PSA).
“PSA Seller” means the “Seller” (as such term is defined in the Sponsor Pine Brooke PSA).
“PTC” means the renewable electricity production credit under Section 45 of the Code.
“Purchased Units” mean, (i) with respect to the Class A Purchaser, (x) the Class A Purchased Units and (y) from the Initial Issuance until the Additional Closing (if any), the Additional Aggregate Class B Purchased Units and (ii) with respect to each Class B Purchaser, (x) the Initial Individual Class B Purchased Units and (y) from and after the Additional Closing (if any), the Additional Individual Class B Purchased Units (if any) to be purchased by such Class B Purchaser, in each case, pursuant to the terms of this Agreement.
“Purchaser Related Parties” has the meaning specified in Section 6.01(a).
“Purchasers” means, collectively, the Class A Purchaser and the Class B Purchasers and individually, the Class A Purchaser or an individual Class B Purchaser, as applicable.
“Qualifying Financing” has the meaning set forth in the A&R LLC Agreement.
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“Registration Rights Agreement” means the Registration Rights Agreement to be entered into at the Initial Closing, between NEP, the Class B Purchaser Representative, and the other Class B Purchasers party thereto, substantially in the form attached hereto as Exhibit B.
“Reimbursable Expenses” has the meaning specified in Section 8.01.
“Reimbursement Amount” has the meaning specified in Section 8.01.
“Remaining Disputed Matters” has the meaning specified in Section 2.16(d).
“Representatives” means, with respect to a specified Person, the investors, officers, directors, managers, employees, agents, advisors, counsel, accountants, investment bankers, and other representatives of such Person.
“Restructuring Transactions” means the consummation of the transactions contemplated by the Contribution Agreement, and the performance by the Company of its obligations thereunder, the contribution by the Class A Purchaser of the Initial Acquired Assets and consummation of the transactions and other matters set forth on Schedule D hereto.
“ROFR Agreement” means that certain Right of First Refusal Agreement, by and among NEP, NEP OpCo and XXXX, dated as of August 4, 2017, as may be amended, restated or otherwise modified from time to time.
“Saint Solar Project” has the meaning specified on Schedule J hereto.
“Sanctioned Country” means, a country or territory that is the subject of comprehensive Sanctions (which, as of the Execution Date, means Cuba, Iran, North Korea, Syria, and the Crimea region).
“Sanctioned Person” means at any time any Person: (i) listed on any Sanctions-related list of designated or blocked Persons; (ii) ordinarily resident in or organized under the laws of a Sanctioned Country; or (iii) fifty percent (50%) or more (in the aggregate) of which is owned, directly or indirectly, by any of the foregoing.
“Sanctions” means, collectively, the sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security Council, or the European Union.
“Xxxxxxx Airport Solar Project” has the meaning specified on Schedule J hereto.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Sellco” means NEP US SellCo, LLC, a Delaware limited liability company.
“Series A Preferred Units” has the meaning set forth for such term in the NEP Partnership Agreement.
“Soldier Creek Wind Project” has the meaning specified on Schedule J hereto.
“Sponsor” means KKR Group Partnership L.P., a Delaware limited partnership.
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“Sponsor Pine Brooke PSA” means that certain Purchase and Sale Agreement by and between PSA Seller, as seller, and KKR Pine Brooke Issuer LLC, as purchaser, dated as of the Execution Date, as amended by the Additional Acquired Companies Amendment to Purchase and Sale Agreement (2020 Acquired Companies Annex) and the Acquired Companies Annex for the 2020 Acquired Companies Acquisition attached thereto, dated as of the Execution Date, as may be further amended or modified from time to time.
“Sponsor Pine Brooke PSA Purchaser” means the “Purchaser” (as defined in the Sponsor Pine Brooke PSA).
“Subsidiary” means, as to any Person, any corporation or other entity of which: (a) such Person or a Subsidiary of such Person is, in the case of a partnership, a general partner or, in the case of a limited liability company, the managing member or manager thereof; (b) at least a majority of the outstanding equity interest having by the terms thereof ordinary voting power to elect a majority of the board of directors or similar governing body of such corporation or other entity (irrespective of whether or not at the time any equity interest of any other class or classes of such corporation or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more of its Subsidiaries; or (c) any corporation or other entity as to which such Person consolidates for accounting purposes. For the avoidance of doubt, neither Pine Brooke Holdings (or any of its Subsidiaries) nor NextEra Desert Center Blythe, LLC, is a Subsidiary of the Company nor shall they be deemed a Subsidiary of the Company for any purposes of this Agreement.
“Support Obligations” means all material guaranties, letters of credit, bonds, collateral, or other credit support provided by NEP, its Affiliates, or any of their respective Subsidiaries (other than a Company Entity) on behalf of any Company Entity.
“Synthetic Lease Obligation” means, as of any date, the amount of monetary obligations of a Person under a so-called synthetic, off-balance sheet or tax retention lease as of such date.
“Tax” means any net income, alternative, or add-on minimum tax, gross income, gross receipts, estimated, sales, use, ad valorem, personal property, franchise, profits, license, withholding (on amounts paid or received), payroll, employment, social security, unemployment, disability, excise, severance, stamp, occupation, capital stock, transfer, registration, value added, premium, property, environmental or windfall profit tax, custom, import, license, duty or other tax, governmental fee, or other like assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax, or additional amount imposed by any Governmental Authority responsible for the imposition of any such tax, charge, or assessment (federal, state, and local, foreign or domestic).
“Tax Equity Credit Support Entities” means, collectively, NEP and NEP OpCo.
“Tax Equity Entity” means, collectively, each of Pine Brooke Company and Golden Plains Company (in each case, for so long as it has outstanding Tax Equity Interests).
“Tax Equity Interests” means the Pine Brooke Company Class B Membership Interests and any other issued and outstanding equity interests in the Project Companies (including Golden Plains Company) that (a) are issued to Persons not Affiliates of NEP, (b) do not represent a controlling interest in such Project Company and (c) entitle the holder thereof to PTCs and/or investment tax credits under Section 48 of the Code.
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“Tax Equity Investors” means such Persons to be issued Tax Equity Interests in (i) Golden Plains Company pursuant to the Golden Plains Tax Equity Financing or Xxxxxx Tax Equity Financing or (ii) Pine Brooke Company pursuant to the Pine Brooke Tax Equity Financing.
“Tax Return” means any return (including any information return, declaration or statement) and any schedule, exhibit or attachment thereto, filed with or submitted to, or required to be filed with or submitted to, any Governmental Authority in connection with the determination, assessment, collection, claim for refund or payment of any Tax or in connection with the administration, implementation or enforcement of or compliance with any Law relating to any Tax.
“Xxxxxx Creek Solar Project” has the meaning specified on Schedule J hereto.
“Termination Fee” means an amount equal to fifteen million U.S. dollars ($15,000,000).
“Third-Party Claim” has the meaning specified in Section 6.03(b).
“Ticking Fees” means, collectively, each “Ticking Fee”, as such term is defined in those certain fee letters, dated as of the Execution Date, by and between the Class B Purchaser Representative and each lender party to the Credit Agreement, in an amount not exceeding (i) 0.125% of the Commitments (as defined in the Credit Agreement), so long as the Initial Closing shall occur on or after January 1, 2021 but prior to Xxxxx 00, 0000, (xx) 0.25% of the Commitments, so long as the Initial Closing shall occur on or after April 1, 2021 but prior to June 30, 2021, and (iii) 0.375% of the Commitments, so long as the Initial Closing shall occur on or after July 1, 2021 but prior to August 31, 2021.
“Transaction Documents” means, collectively, this Agreement, the Registration Rights Agreement, the A&R LLC Agreement, the Asset Purchase Agreement, the Contribution Agreement, the Xxxxxx Purchase Agreement, the Assignment of Xxxxxx PSA Appendix, the Assignment of Pine Brooke (Class C) PSA Appendix, the Additional Class B Units Contribution Agreement, and any and all other agreements or instruments executed and delivered to the Purchasers by the Company or NEP hereunder or thereunder, as applicable.
“Transaction Term Adjustments” has the meaning specified in Section 2.16(a).
“Transfer Taxes” means all federal, state, local, or foreign sales, use, transfer, real property transfer, documentary, registration, mortgage recording, stamp duty, value-added, or similar Taxes.
“Treasury Regulations” means the regulations (including temporary regulations) promulgated by the United States Department of the Treasury pursuant to and in respect of provisions of the Code. All references herein to sections of the Treasury Regulations shall include any corresponding provision or provisions of succeeding, similar or substitute, temporary, or final Treasury Regulations.
“Updated Base Case Levered Return” means the Execution Date Base Case Levered Return, updated to reflect any Pre-Closing Model Input Updates in connection with the Initial Closing pursuant to Section 2.16 and in a manner consistent with the assumptions and procedures set forth in Schedule I.
“Updated Levered Hold Return” means the Execution Date Base Case Levered Return, updated to reflect any Pre-Closing Model Input Updates in connection with the Initial Closing and in a manner consistent with the assumptions and procedures set forth in Schedule I.
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“Updated Minimum Buyout Levered Return” means the Execution Date Minimum Buyout Levered Return, updated to reflect any Pre-Closing Model Input Updates in connection with the Initial Closing pursuant to Section 2.16 and in a manner consistent with the assumptions and procedures set forth in Schedule I.
“Xxxxxx” means Xxxxxx Energy Center, LLC, a Delaware limited liability company.
“Xxxxxx Acquisition” means, subject to Section 5.08, the Company’s purchase from NEP Acquisitions of the Xxxxxx Interest pursuant to the Xxxxxx Purchase Agreement.
“Xxxxxx Bring-Down Consultant Reports” has the meaning specified in Section 2.16(b).
“Wilmot Cash Flow” means “Available Cash Flow” as shall be defined in the Golden Plains Company LLC Agreement prior to the Initial Closing, but only to the extent of the amount of Available Cash Flow attributable to the Xxxxxx Membership Interests held by the Golden Plains Company.
“Xxxxxx Holdback Event” means the occurrence of any of the following with respect to the Xxxxxx Solar Project: (a) it shall have been synchronized or interconnected with the grid, (b) it shall have produced meterable quantities of electricity, or (c) any tests requiring backfeed power shall have begun; provided that, the substation, main power transformer, and generator step-up transformers may have been energized and tested if (i) all DC breakers shall have remained open and locked/tagged out, (ii) all AC inverter output breakers shall have remained open and locked/tagged out, and (iii) no power shall have flowed between the inverters to the substation.
“Xxxxxx Interest” means all of the issued and outstanding limited liability company interests in Xxxxxx.
“Xxxxxx Membership Interests” means all issued and outstanding equity interests of Xxxxxx.
“Xxxxxx Project Model” means the financial model for Xxxxxx.
“Xxxxxx PSA Appendix” means that certain Appendix to the 2020 Amendment to Asset Purchase Agreement providing for the sale by Sellco of the Xxxxxx Interest to NEP Acquisitions.
“Xxxxxx PSA Closing” means the “Closing” (as defined in the Asset Purchase Agreement) of the purchase by NEP Acquisitions of the Xxxxxx Membership Interests from Sellco, as contemplated by the 2020 Amendment to Asset Purchase Agreement and the Xxxxxx PSA Appendix.
“Xxxxxx Purchase Agreement” means that certain Purchase and Sale Agreement (Xxxxxx), dated as of the Execution Date, by and between NEP Acquisitions and the Company.
“Xxxxxx Purchase Price” has the meaning set forth in the Xxxxxx Purchase Agreement.
“Xxxxxx Return” has the meaning set forth in the Asset Purchase Agreement.
“Xxxxxx Solar Project” has the meaning specified on Schedule J hereto.
“Xxxxxx Tax Equity Financing” means the transactions contemplated by the Xxxxxx Tax Equity Financing Documents.
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“Xxxxxx Tax Equity Financing Change” means an event in which any portion of the Xxxxxx Tax Equity Financing shall be consummated after the Execution Date on economic terms that affect the value of the Xxxxxx Tax Equity Inputs (as compared to the value of such Xxxxxx Tax Equity Inputs set forth in the Execution Date Portfolio Project Model) solely as a result of a change in (i) the amount or timing of Projected Wilmot Cash Flow, (ii) the Golden Plains Targeted Flip Date, or (iii) the percentage of net profits or net losses of Xxxxxx allocated to Golden Plains Company.
“Xxxxxx Tax Equity Financing Documents” means the membership interest purchase agreement, equity capital contribution agreements or such other definitive agreements to be entered into with Tax Equity Investors with respect to the acquisition of Tax Equity Interests in the Golden Plains Company upon consummation of the Xxxxxx Tax Equity Financing.
“Xxxxxx Tax Equity Inputs” means the inputs to the Portfolio Project Model in the worksheet labeled “Resource Cases”, rows 84-87 and rows 97-100, in each case, subject to adjustment pursuant to Section 2.16 and in a manner consistent with the assumptions and procedures set forth in Schedule I.
Section 1.02 Accounting Procedures and Interpretation. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial statements of NEP or related to the Acquired Project Companies and the Contributed Project Companies and certificates and reports as to financial matters required to be furnished to the Purchasers hereunder shall be prepared, in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q promulgated by the Commission) and in compliance as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto.
ARTICLE II
AGREEMENT TO ISSUE, SELL AND PURCHASE
Section 2.01 Issuance, Sale and Purchase; Use of Class B Purchase Price.
(a) Prior to the Initial Closing, (i) all Debt for Borrowed Money of the Company and its Controlled Subsidiaries (including the Project Companies that are Controlled Subsidiaries and NextEra Desert Center Blythe, LLC) shall be repaid in full (other than Debt for Borrowed Money set forth on Schedule L or permitted to be incurred during the Interim Period pursuant to Section 5.01) and (ii) all Liens on the Assets (or the respective assets of the Project Companies) shall be released (other than Permitted Liens).
(b) Prior to the Initial Closing, NEP shall cause NEP Acquisitions and its Subsidiaries, including the Class A Purchaser, to contribute (or be deemed to contribute) the Contributed Assets to the Company pursuant to the Contribution Agreement, free and clear of all Liens (including, without limitation, any Liens on the respective assets of the Contributed Project Companies), other than Permitted Liens.
(c) Prior to the Initial Closing, (i) NEP shall cause NEP Acquisitions (or one of its Subsidiaries) to acquire all right, title, and interest in and to the Initial Acquired Assets and to consummate the transactions contemplated by the Pine Brooke (Class C) PSA Appendix, and (ii) NEP shall cause NEP Acquisitions (or such Subsidiary) to contribute the Initial Acquired Assets to the Class A Purchaser, and the Class A Purchaser shall in turn contribute the Initial Acquired Assets to the
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Company, free and clear of all Liens (including, without limitation, any Liens on the respective assets of the Initial Acquired Project Companies), other than Permitted Liens.
(d) Prior to the Initial Closing, upon consummation of the contribution of the Contributed Assets and Initial Acquired Assets to the Company pursuant to Section 2.01(b) and Section 2.01(c), respectively, the Company LLC Agreement shall be amended and restated substantially in the form of the A&R LLC Agreement attached hereto as Exhibit A, subject to the provisions of Section 2.16(e) and in a manner consistent with the assumptions and procedures set forth in Schedule I, and, simultaneously therewith: (i) all of the issued and outstanding limited liability company interests of the Company shall be canceled; and (ii) in exchange for the Class A Purchaser’s contribution (or deemed contribution) of the Contributed Assets and the Initial Acquired Assets to the Company, the Company shall issue and sell to the Class A Purchaser, in accordance with the terms of the A&R LLC Agreement (the “Initial Issuance”): (A) a number of Class A Units equal to the Class A Purchased Units; and (B) a number of Class B Units equal to the Additional Aggregate Class B Purchased Units (the date upon which the foregoing transactions shall be consummated shall be referred to herein as the “Initial Issuance Date”).
(e) At the Initial Closing, (i) the Company shall issue and sell the Initial Aggregate Class B Purchased Units to the Class B Purchasers set forth in Section II of Schedule A hereto in accordance with the terms of this Agreement, in exchange for payment by such Class B Purchasers to the Company of an aggregate amount equal to the Initial Aggregate Class B Purchase Price, with each such Class B Purchaser to acquire its respective Initial Individual Class B Purchased Units in exchange for payment by such Class B Purchaser to the Company of an amount equal to such Class B Purchaser’s Initial Individual Class B Purchase Price and (ii) each Class B Purchaser shall be admitted as a member of the Company.
(f) Promptly following the later to occur of the Initial Closing and the consummation of the PSA Closing, the Company shall distribute to the Class A Purchaser an amount in cash equal to the Initial Closing Distribution Amount;
(g) Subject to Section 2.17 and Section 5.08, (i) within two (2) Business Days following the satisfaction or waiver of the conditions to consummate the Xxxxxx PSA Closing (other than those conditions that by their nature are to be satisfied at the Xxxxxx PSA Closing, but subject to the fulfillment or waiver of those conditions at the Xxxxxx PSA Closing), NEP shall cause NEP Acquisitions (or one of its Subsidiaries) to acquire all right, title, and interest in and to the Xxxxxx Interest and to consummate the transactions contemplated by the Xxxxxx PSA Appendix and (ii) on or prior to the second (2nd) Business Day following the latest to occur of (X) the Initial Closing, (Y) the consummation of the PSA Closing and (Z) the consummation of the Xxxxxx PSA Closing, the Company shall use the remaining portion of the Initial Aggregate Class B Purchase Price to pay the Xxxxxx Purchase Price and consummate the Xxxxxx Acquisition;
(h) Immediately prior to the Additional Closing (if any), the Class A Purchaser shall contribute the Additional Aggregate Class B Purchased Units to the Company pursuant to the Additional Class B Units Contribution Agreement (the “Additional Class B Units Contribution”) and, at the Additional Closing, the Company shall sell the Additional Aggregate Class B Purchased Units (if any) to the Class B Purchasers set forth in Section III of Schedule A hereto in accordance with the terms of this Agreement, in exchange for payment by such Class B Purchasers to the Company of an aggregate amount equal to the Additional Aggregate Class B Purchase Price, with each such Class B Purchaser to acquire its respective Additional Individual Class B Purchased Units in exchange for payment by such Class B Purchaser to the Company of an amount equal to such Class B Purchaser’s Additional Individual Class B Purchase Price. For the avoidance of doubt, immediately
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following the Additional Closing, if any, the Class B Purchasers shall hold one hundred percent (100%) of the issued and outstanding Class B Units.
(i) Promptly following the Additional Closing (if any), the Company shall distribute to the Class A Purchaser an amount in cash equal to the Additional Aggregate Class B Purchase Price.
(j) Notwithstanding anything herein to the contrary, prior to each of the Initial Closing and the Additional Closing (if any), the Class B Purchaser Representative, on behalf of the Class B Purchasers, may assign all or a portion of its respective rights and obligations hereunder to acquire the Aggregate Class B Purchased Units to one or more Affiliates or Subsidiaries of the Class B Purchaser Representative, and each such Affiliate or Subsidiary shall be deemed to be such Purchaser hereunder, and Section II and/or Section III of Schedule A hereto, as applicable, shall be revised to reflect any changes resulting from such assignment; provided that the foregoing shall not relieve any Class B Purchaser from any of its obligations hereunder to the extent not fulfilled by the Affiliate or Subsidiary to which such rights and obligations are assigned.
Section 2.02 Initial Closing.
(a) The Initial Closing shall take place (i) on a Business Day specified by the Class A Purchaser in a notice to the Company and the Class B Purchasers (the “Notice of Initial Closing”), following the satisfaction or waiver of the conditions set forth in Section 2.03, Section 2.04, Section 2.05, and Section 2.06 (other than those conditions that by their nature are to be satisfied at the Initial Closing, but subject to the fulfillment or waiver of those conditions at the Initial Closing) but which shall take place (A) no earlier than twelve (12) Business Days after receipt by the Class B Purchasers of the Notice of Initial Closing; provided that the Initial Closing shall not occur (I) prior to the Inside Date or (II) during the last fifteen (15) days of any calendar quarter (other than the fourth quarter of 2020, in which case, the Initial Closing shall not occur on any date after December 18, 2020) and (B) no later than the Drop-Dead Date, or (ii) at such other time and place as the Purchasers may agree, subject, in each case, to the satisfaction or waiver of the conditions set forth in Section 2.03, Section 2.04, Section 2.05, and Section 2.06 at the Initial Closing.
(b) The Parties agree that the Class A Purchaser shall be required to deliver the Notice of Initial Closing no later than twelve (12) Business Days prior to the Drop-Dead Date, and to the extent such Notice of Initial Closing has not been delivered by such date, such Notice of Initial Closing shall be deemed to have been given for the entire Class B Purchase Price, and the Initial Closing shall occur on the Drop-Dead Date, subject to the satisfaction or waiver of the conditions set forth in Section 2.03, Section 2.04, Section 2.05, and Section 2.06 on such date.
(c) The Initial Closing shall take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP at One Xxxxxx Square, Wilmington, Delaware (or such other location as agreed to by the Company and the Purchasers).
Section 2.03 Initial Closing – Mutual Conditions. The respective obligations of the Company and the Class A Purchaser to consummate the Initial Issuance, and the respective obligations of the Company and the Class B Purchaser to consummate the issuance, purchase and sale at the Initial Closing of the Initial Aggregate Class B Purchased Units, as well as all obligations of NEP at or after the Initial Closing pursuant to this Agreement, shall be subject to the satisfaction, on or prior to the Initial Issuance Date and the Initial Closing Date, of each of the following conditions (any or all of which may be waived by the Company, the Class A Purchaser or the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers representing the
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right to acquire at least a majority of the Initial Aggregate Class B Purchased Units at the Initial Closing (as set forth in Section II of Schedule A hereto)), in writing, in whole or in part, to the extent permitted by applicable Law):
(a) all Governmental Authorizations set forth in Schedule E hereto shall have occurred or been filed or obtained and shall be in full force and effect;
(b) all of the conditions to the consummation of the purchase of the Initial Acquired Assets in accordance with the terms of the Asset Purchase Agreement (including the Pine Brooke (Class C) PSA Appendix) shall have been satisfied or, subject to Section 5.05(a), waived by the parties thereto in accordance with the terms thereof, and the Closing (as defined in the Asset Purchase Agreement) of the purchase and sale of the Initial Acquired Assets shall have occurred prior to the Initial Issuance and the Initial Closing hereunder in accordance with the terms thereof and Section 2.01;
(c) all of the conditions to the consummation of the PSA Closing set forth in the Sponsor Pine Brooke PSA shall have been satisfied or waived by the parties thereto (other than those conditions which by their nature are to be satisfied at the PSA Closing);
(d) no statute, rule, order, decree, or regulation shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Authority that temporarily, preliminarily or permanently restrains, precludes, enjoins, or otherwise prohibits the consummation of the transactions contemplated hereby or makes the transactions contemplated hereby illegal; and
(e) there shall not be pending any suit, action, or proceeding by any Governmental Authority seeking to restrain, preclude, enjoin, or prohibit the transactions contemplated by this Agreement; and
(f) the Golden Plains Tax Equity Financing shall have been consummated with respect to the Northern Colorado I Wind Project, the Northern Colorado II Wind Project and the Xxxxxxx Wind Project.
Section 2.04 Initial Issuance and Initial Closing - Conditions to the Purchasers’ Obligations.
(a) The obligation of the Class A Purchaser to consummate its purchase of the Class A Purchased Units and the Additional Aggregate Class B Purchased Units shall be subject to the satisfaction on or prior to the Initial Issuance Date of each of the following conditions (any or all of which may be waived by the Class A Purchaser in writing, in whole or in part, to the extent permitted by applicable Law):
i.there shall not have occurred a Material Adverse Effect; and
ii.each Class B Purchaser shall have satisfied, on or prior to the Initial Issuance Date, the conditions set forth in Section 2.05 with respect to such Class B Purchaser (any or all of which conditions may be waived by the Class A Purchaser in writing, in whole or in part, to the extent permitted by applicable Law) and each Class B Purchaser shall have delivered, or caused to be delivered, to the Company such Class B Purchaser’s closing deliveries described in Section 2.07(b).
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(b) The obligation of each Class B Purchaser to consummate the purchase of its Initial Individual Class B Purchased Units in the Initial Class B Units Sale at the Initial Closing shall be subject to the satisfaction on or prior to the Initial Closing Date of each of the following conditions (any or all of which may be waived by the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers representing the right to acquire at least a majority of the Initial Aggregate Class B Purchased Units at the Initial Closing (as set forth in Section II of Schedule A hereto)), in writing, in whole or in part, to the extent permitted by applicable Law):
(i) the representations and warranties of the Company, NEP and the Class A Purchaser contained in this Agreement shall be true and correct in all material respects (other than those representations and warranties contained in Section 3.01 (Existence), Section 3.02 (Capitalization and Valid Issuance of Units), Section 3.03 (Ownership of the Class A Purchaser), Section 3.04 (Indebtedness; Liabilities), Section 3.05 (Due Formation), Section 3.11 (Authority; Enforceability), Section 3.13 (Investment Company Status), Section 3.14 (Certain Fees), or Section 3.22 (Tax), or those representations and warranties that are qualified by materiality or Material Adverse Effect, which, in each case, shall be true and correct in all respects) when made and as of the Initial Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct (or true and correct in all material respects, as applicable) as of such date only);
(ii) the Company and the Class A Purchaser shall have performed and complied in all material respects with all of the covenants and agreements contained in this Agreement that are required to be performed or complied with by it on or prior to the Initial Closing Date;
(iii) NEP shall have performed and complied in all material respects with all of the covenants and agreements contained in this Agreement that are required to be performed or complied with by it on or prior to the Initial Closing Date;
(iv) the NYSE shall have authorized, upon official notice of issuance, the listing of the Conversion Units to be issued upon conversion of the Issued NEP Non-Voting Units into Conversion Units;
(v) no notice of delisting from NYSE shall have been received by NEP with respect to the NEP Common Units;
(vi) the Debt Financing shall have been funded on the terms and conditions set forth in the Credit Agreement, after giving effect to any “flex” rights in the Credit Agreement or any related agreement, or upon terms and conditions that are not materially less favorable, in the aggregate, to the Class B Purchaser;
(vii) all Debt for Borrowed Money of the Company and its Controlled Subsidiaries (including the Project Companies that are Controlled Subsidiaries) and of NextEra Desert Center Blythe, LLC (other than Debt for Borrowed Money set forth on Schedule L or permitted to be incurred during the Interim Period pursuant to Section 5.01), shall have been repaid in full, and all Liens on the Assets (or the respective assets of the Project Companies), other than Permitted Liens, shall have been released;
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(viii) there shall not have occurred a Material Adverse Effect;
(ix) the Company shall have delivered, or caused to be delivered, to the Purchasers the Company’s closing deliveries described in Section 2.07(a);
(x) NEP shall have delivered, or caused to be delivered, to the Purchasers the closing deliveries of NEP described in Section 2.07(c);
(xi) the Class A Purchaser shall have delivered, or caused to be delivered, to the Company the Class A Purchaser’s closing deliveries described in Section 2.07(b);
(xii) the Assignment of Pine Brooke (Class C) PSA Appendix shall be in full force and effect;
(xiii) subject to Section 5.08, the Xxxxxx Purchase Agreement shall be in full force and effect;
(xiv) each of the Build Out Agreement (Contributed Assets) and the Build Out Agreement (Pine Brooke) shall be in full force and effect; and
(xv) the Class A Purchaser and the Company shall have received an irrevocable waiver from XXXX of all rights of first offer and rights of first refusal under the ROFR Agreement with respect to (A) the Class B Units Sales and the other transactions contemplated by this Agreement and (B) any exercise by the Class B Member Representative of its right to cause a Liquidity Event (including any related sale of assets or Membership Interests) pursuant to Section 7.09 of the A&R LLC Agreement.
Section 2.05 Initial Issuance and Initial Closing - Conditions to the Company’s Obligations. The obligation of the Company to consummate (i) the issuance and sale of the Class A Purchased Units and the Additional Aggregate Class B Purchased Units to the Class A Purchaser, and (ii) the issuance and sale of the Initial Aggregate Class B Purchased Units to the Class B Purchaser shall be subject to the satisfaction on or prior to the Initial Issuance Date and the Initial Closing Date of each of the following conditions (any or all of which may be waived by the Company in writing, in whole or in part, to the extent permitted by applicable Law):
(a) the representations and warranties of each Class B Purchaser contained in this Agreement shall be true and correct in all material respects (other than those representations and warranties that are qualified by materiality, which, in each case, shall be true and correct in all respects) when made and as of the Initial Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct (or true and correct in all material respects, as applicable) as of such date only);
(b) each Class B Purchaser shall have performed and complied in all material respects with all of the covenants and agreements contained in this Agreement that are required to be performed or complied with by it on or prior to the Initial Closing Date; and
(c) each Class B Purchaser shall have delivered, or caused to be delivered, to the Company such Class B Purchaser’s closing deliveries described in Section 2.07(b), as applicable.
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Section 2.06 Initial Closing - Conditions to NEP’s Obligations. The obligations of NEP to each Purchaser from and after the Initial Closing pursuant to this Agreement shall be subject to the satisfaction on or prior to the Initial Closing Date of each of the following conditions (any or all of which may be waived by NEP in writing, in whole or in part, to the extent permitted by applicable Law):
(a) the representations and warranties of each Class B Purchaser contained in this Agreement shall be true and correct in all material respects (other than those representations and warranties that are qualified by materiality, which, in each case, shall be true and correct in all respects) when made and as of the Initial Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct (or true and correct in all material respects, as applicable) as of such date only);
(b) each Class B Purchaser shall have performed and complied in all material respects with all of the covenants and agreements contained in this Agreement that are required to be performed or complied with by it on or prior to the Initial Closing Date; and
(c) each Class B Purchaser shall have delivered, or caused to be delivered, to the Company, such Purchaser’s closing deliveries described in Section 2.07(b), as applicable.
Section 2.07 Deliveries at the Initial Closing.
(a) Deliveries of the Company. At the Initial Closing (except as otherwise indicated), the Company shall deliver, or cause to be delivered, to the Purchasers:
(i) a certificate of an officer of the Company, dated as of the Initial Closing Date, certifying as to and attaching (A) the Certificate of Formation of the Company, (B) the Company LLC Agreement, (C) resolutions authorizing the execution and delivery of the Transaction Documents and the consummation of the transactions contemplated thereby, including the issuance (I) to the Class A Purchaser of the Class A Purchased Units and the Additional Aggregate Class B Purchased Units and (II) to the Class B Purchaser of the Initial Aggregate Class B Purchased Units and (D) the incumbency of the officers authorized to execute the Transaction Documents on behalf of the Company, as applicable, setting forth the name and title and bearing the signatures of such officers;
(ii) a certificate of the Secretary of State of the State of Delaware, dated within ten (10) Business Days prior to the Initial Closing Date, to the effect that the Company is in good standing in the State of Delaware;
(iii) an officer’s certificate of the Company, dated as of the Initial Closing Date, certifying that the conditions set forth in Section 2.04(b)(i) and Section 2.04(b)(ii) (in each case, solely as they pertain to the Company) have been satisfied;
(iv) a cross-receipt executed by the Company certifying that it has received from the Class B Purchasers the Initial Aggregate Class B Purchase Price;
(v) a fully executed copy of the Pine Brooke Company Project Financing Documents and the Pine Brooke Company A&R LLC Agreement;
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(vi) a fully executed copy of each of the Golden Plains Tax Equity Financing Documents, and any amendments, supplements or amendments and restatements of the Golden Plains Company LLC Agreement executed in connection therewith and copies of such other documents delivered prior to the Initial Closing pursuant to the terms of the applicable purchase and sale agreement to Tax Equity Investors in connection with the consummation of the applicable Golden Plains Tax Equity Financing;
(vii) if the PSA Closing shall occur substantially simultaneous with the Initial Closing, then immediately following the later to occur of (X) the Initial Closing and the (Y) the PSA Closing, payment to the Class A Purchaser of a cash distribution in an amount equal to the Initial Closing Distribution Amount, payable by wire transfer of immediately available funds to an account designated in advance of the Initial Closing Date by the Class A Purchaser;
(viii) an executed counterpart of the Blocker Purchase Agreement, which shall have been duly executed by the Company; and
(ix) such other documents contemplated by this Agreement as the Purchasers or their respective counsel shall reasonably require.
(b) Deliveries of Each Purchaser. At or prior to the Initial Closing (except as otherwise indicated), the applicable Purchaser shall deliver or cause to be delivered to the Company:
(i) a counterpart of the Registration Rights Agreement, which shall have been duly executed by each Class B Purchaser;
(ii) a cross-receipt, duly executed by (A) each of the Class B Purchasers and delivered to the Company, certifying that such Class B Purchaser has received from the Company, the number of Initial Individual Class B Purchased Units to be received by such Class B Purchaser at the Initial Closing and (B) the Class B Purchaser Representative, on behalf of each of the Class B Purchasers, certifying that the Class B Purchasers have received credit in the Portfolio Project Model in an aggregate amount equal to the Reimbursement Amount;
(iii) an executed counterpart to the A&R LLC Agreement, substantially in the form attached hereto as Exhibit A, subject to any updates pursuant to Section 2.16 and in a manner consistent with the assumptions and procedures set forth in Schedule I, which shall have been duly executed by each such Purchaser;
(iv) a duly executed certificate of (A) an authorized officer of each Class B Purchaser, dated as of the Initial Closing Date, to the effect that the conditions set forth in Section 2.05(a) and Section 2.05(b) have been satisfied, and (B) an authorized officer of the Class A Purchaser, dated as of the Initial Closing Date, to the effect that the conditions set forth in Section 2.04(b)(i) and Section 2.04(b)(ii) (in each case, solely as they pertain to the Class A Purchaser) have been satisfied;
(v) for each Class B Purchaser, payment of such Class B Purchaser’s Initial Individual Class B Purchase Price, payable by wire transfer of immediately available funds to an account designated in advance of the Initial Closing Date by the Company;
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(vi) if the Initial Closing Distribution Amount shall be paid to the Class A Purchaser immediately following the Initial Closing pursuant to Section 2.07(a)(vii), then a cross-receipt, duly executed by the Class A Purchaser and delivered to the Company, certifying that the Class A Purchaser has received from the Company the Initial Closing Distribution Amount;
(vii) (A) for each Class B Purchaser, an executed counterpart of the Blocker Purchase Agreement, which shall have been duly executed by each Class B Purchaser, the Class B Purchaser Representative, Class B Parent, Class B Holdco, the Blocker Parent, and the Term Loan Agent and (B) for the Class A Purchaser, an executed counterpart of the Blocker Purchaser Agreement, which shall have been duly executed by the Class A Purchaser; and
(viii) such other documents contemplated by this Agreement as the Company or NEP or their respective counsel shall reasonably require.
(c) Deliveries of NEP. At the Initial Closing (except as otherwise indicated), NEP shall deliver, or cause to be delivered, to the Purchasers:
(i) a certificate of an officer of NEP, dated as of the Initial Closing Date, certifying as to and attaching (A) the certificate of limited partnership of NEP, (B) the NEP Partnership Agreement, as in effect immediately prior to the Initial Closing, (C) resolutions authorizing the execution and delivery of the Transaction Documents to which NEP is a party and the consummation of the transactions contemplated thereby, including the issuance of Issued NEP Non-Voting Units upon exercise of the Call Option, the NEP Change of Control Option, or the Class B COC Option, and the issuance of any Conversion Units upon conversion of Issued NEP Non-Voting Units, and (D) the incumbency of the officers authorized to execute the Transaction Documents on behalf of NEP, as applicable, setting forth the name and title and bearing the signatures of such officers;
(ii) an executed counterpart of the Registration Rights Agreement, which shall have been duly executed by NEP;
(iii) a fully executed “Supplemental Listing Application” approving the Conversion Units for listing by NYSE;
(iv) an executed counterpart to the A&R LLC Agreement, substantially in the form attached hereto as Exhibit A, which shall have been duly executed by NEP;
(v) a certificate of the Secretary of State of the State of Delaware, dated within ten (10) Business Days prior to the Initial Closing Date, to the effect that NEP is in good standing in the State of Delaware;
(vi) an officer’s certificate of NEP, dated as of the Initial Closing Date, certifying that the conditions set forth in Section 2.04(b)(i) and Section 2.04(b)(iii) (in each case, solely as they pertain to NEP) have been satisfied;
(vii) (A) a properly executed Internal Revenue Service Form W-9 of the Class A Purchaser (or, if the Class A Purchaser is disregarded as
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separate from its owner for U.S. federal income tax purposes, the Class A Purchaser’s regarded owner), and (B) a certificate of non-foreign status properly executed and completed by the Class A Purchaser (or, if the Class A Purchaser is disregarded as separate from its owner for U.S. federal income tax purposes, the Class A Purchaser’s regarded owner), dated as of the Initial Closing Date, substantially in the form specified in Treasury Regulations Section 1.1445-2(b)(2)(iv), in the case of each of clauses (A) and (B), such delivery to be made (or caused by NEP to be made) to the relevant Class B Purchaser and the Company; and
(viii) an executed counterpart of the Blocker Purchase Agreement, which shall have been duly executed by NEP; and
(ix) such other documents contemplated by this Agreement as the Purchasers or their respective counsel shall reasonably require.
Section 2.08 Additional Closing.
(a) The Additional Closing (if any) shall take place (i) on a Business Day specified by the Class A Purchaser in a notice to the Company and the Class B Purchasers (the “Notice of Additional Closing”), following the satisfaction or waiver of the conditions set forth in Section 2.09, Section 2.10 and Section 2.11 (other than those conditions that by their nature are to be satisfied at the Additional Closing, but subject to the fulfillment or waiver of those conditions at the Additional Closing) but which shall take place (A) no earlier than thirty (30) days after receipt by the Class B Purchasers of the Notice of Additional Closing (provided that the Additional Closing shall not occur during the last fifteen (15) days of any calendar quarter) and (B) no later than the Drop-Dead Date, or (ii) at such other time and place as the Company and the Purchasers may agree, subject, in each case, to the satisfaction or waiver of the conditions set forth in Section 2.09, Section 2.10 and Section 2.11 at the Additional Closing.
(b) The Parties agree that if the Class B Purchasers do not acquire all of the Aggregate Class B Purchased Units at the Initial Closing, then the Class A Purchaser shall be required to deliver the Notice of Additional Closing no later than thirty (30) days prior to the Drop-Dead Date, and to the extent such Notice of Additional Closing has not been delivered by such date, such Notice of Additional Closing shall be deemed to have been given, and the Additional Closing shall occur on the Drop-Dead Date, subject to the satisfaction or waiver of the conditions set forth in Section 2.09, Section 2.10 and Section 2.11 on such date.
(c) The Additional Closing (if any) shall take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP at One Xxxxxx Square, Wilmington, Delaware (or such other location as agreed to by the Company and the Purchasers).
Section 2.09 Additional Closing – Mutual Conditions. The respective obligations of the Company, the Class A Purchaser and each Class B Purchaser set forth in Section III of Schedule A hereto to consummate each of their respective obligations at (or, with respect to the Class A Purchaser, immediately prior to) the Additional Closing (if any), shall be subject to the satisfaction, on or prior to the Additional Closing Date, of each of the following conditions (any or all of which may be waived by the Company, the Class A Purchaser or the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers representing the right to acquire at least a majority of the Additional Aggregate Class B Purchased Units at the Additional Closing (as set forth in Section III of Schedule A hereto)), in writing, in whole or in part, to the extent permitted by applicable Law):
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(a) all Governmental Authorizations made, filed, or obtained in connection with the Initial Closing shall remain in full force and effect;
(b) no statute, rule, order, decree, or regulation shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Authority that temporarily, preliminarily or permanently restrains, precludes, enjoins, or otherwise prohibits the consummation of the transactions contemplated hereby or makes the transactions contemplated hereby illegal; and
(c) there shall not be pending any suit, action, or proceeding by any Governmental Authority seeking to restrain, preclude, enjoin, or prohibit the transactions contemplated by this Agreement.
Section 2.10 Additional Closing – Conditions to the Class B Purchaser’s Obligations. The obligation of each Class B Purchaser set forth in Section III of Schedule A hereto to consummate its purchase of its Additional Individual Class B Purchased Units in the Additional Class B Units Sale at the Additional Closing (if any) shall be subject to the satisfaction on or prior to the Additional Closing Date of each of the following conditions (any or all of which may be waived by the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers representing the right to acquire at least a majority of the Additional Aggregate Class B Purchased Units at the Additional Closing (as set forth in Section III of Schedule A hereto)), in writing, in whole or in part, to the extent permitted by applicable Law):
(a) the representations and warranties of the Class A Purchaser and the Company contained in this Agreement shall be true and correct in all material respects (other than those representations and warranties contained in Section 3.01 (Existence), Section 3.02(d) (Capitalization and Valid Issuance of Units), Section 3.02(e) (Capitalization and Valid Issuance of Units), Section 3.02(f) (Capitalization and Valid Issuance of Units), Section 3.05 (Due Formation), Section 3.07 (No Registration Required), Section 3.11 (Authority; Enforceability), Section 3.13 (Investment Company Status), Section 3.14 (Certain Fees), and Section 4.04 (Certain Fees) or those representations and warranties that are qualified by materiality or Material Adverse Effect, which, in each case, shall be true and correct in all respects) when made and as of the Additional Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct (or true and correct in all material respects, as applicable) as of such date only);
(b) the Company and the Class A Purchaser shall have performed and complied in all material respects with all of the covenants and agreements contained in this Agreement that are required to be performed or complied with by it following the Initial Closing and on or prior to the Additional Closing Date;
(c) the Class A Purchaser shall have contributed all of its right, title and interest in and to the Additional Aggregate Class B Purchased Units to the Company;
(d) there shall not have occurred a Material Adverse Effect;
(e) no notice of delisting from NYSE shall have been received by NEP with respect to the NEP Common Units;
(f) the Credit Agreement shall be in full force and effect and the Additional Funding Date (as defined in the Credit Agreement) shall occur on the Additional Closing Date;
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(g) each of the Build Out Agreements shall be in full force and effect, subject to Section 5.08;
(h) the Company shall have delivered, or caused to be delivered, to the Class B Purchasers the Company’s closing deliveries described in Section 2.12(a); and
(i) the Class A Purchaser shall have delivered, or caused to be delivered, to the Class B Purchasers the Class A Purchaser’s closing deliveries described in Section 2.12(b).
Section 2.11 Additional Class B Units Contribution and Additional Closing - Conditions to the Company’s and the Class A Purchaser’s Obligations. The obligation of the Class A Purchaser to consummate the Additional Class B Units Contribution immediately prior to the Additional Closing, and the obligation of the Company to consummate the issuance and sale of the Additional Aggregate Class B Purchased Units to the Class B Purchasers set forth in Section III to Schedule A hereto at the Additional Closing (if any), shall be subject to the satisfaction on or prior to the Additional Closing Date of each of the following conditions (any or all of which may be waived by the Class A Purchaser or the Company in writing, in whole or in part, to the extent permitted by applicable Law):
(a) the representations and warranties of each such Class B Purchaser contained in Section 4.01 (Existence), Section 4.02 (Authorization; Enforceability), Section 4.03 (No Breach), Section 4.05 (Unregistered Securities), and Section 4.06(a) (Sufficient Funds) of this Agreement shall be true and correct in all material respects (other than those representations and warranties that are qualified by materiality, which, in each case, shall be true and correct in all respects) when made and as of the Additional Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct (or true and correct in all material respects, as applicable) as of such date only);
(b) each such Class B Purchaser shall have performed and complied in all material respects with all of the covenants and agreements contained in this Agreement that are required to be performed or complied with by it following the Initial Closing and on or prior to the Additional Closing Date; and
(c) each such Class B Purchaser shall have delivered, or caused to be delivered, to the Class A Purchaser such Class B Purchaser’s closing deliveries described in Section 2.12(c), as applicable.
Section 2.12 Deliveries at the Additional Closing.
(a) Deliveries of the Company. At or prior to the Additional Closing, if any, the Company shall deliver, or cause to be delivered, to the Class B Purchasers or the Class A Purchaser, as specified, the following:
(i) an officer’s certificate of the Company, dated as of the Additional Closing Date, certifying that the conditions set forth in Section 2.10(a) and Section 2.10(b) (solely as it pertains to the Company) have been satisfied;
(ii) a certificate of the Secretary of State of the State of Delaware, dated within ten (10) Business Days prior to the Additional Closing Date, to the effect that the Company is in good standing in the State of Delaware;
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(iii) an executed counterpart of the Additional Class B Units Contribution Agreement, which has been duly executed by the Company;
(iv) a cross-receipt duly executed by the Company certifying that it has received from the Class B Purchasers the Additional Aggregate Class B Purchase Price;
(v) a cross-receipt duly executed by the Company certifying that it has received from the Class A Purchaser the Additional Class B Units Contribution;
(vi) immediately following the Additional Closing, payment to the Class A Purchaser of a cash distribution in an amount equal to the Additional Aggregate Class B Purchase Price, payable by wire transfer of immediately available funds to an account designated in advance of the Additional Closing Date by the Class A Purchaser; and
(vii) such other documents contemplated by this Agreement as the Purchasers or their respective counsel shall reasonably require.
(b) Deliveries of the Class A Purchaser. At or prior to the Additional Closing, if any, the Class A Purchaser shall deliver, or cause to be delivered, to the Class B Purchaser the following:
(i) an executed counterpart of the Additional Class B Units Contribution Agreement, which has been duly executed by the Class A Purchaser;
(ii) a cross-receipt duly executed by the Class A Purchaser certifying that it has received from the Company the Additional Aggregate Class B Purchase Price;
(iii) a certificate of an authorized officer of the Class A Purchaser, dated as of the Additional Closing Date, to the effect that the conditions set forth in Section 2.10(a) and Section 2.10(b) (solely as it pertains to the Class A Purchaser) have been satisfied;
(iv) a certificate of the Secretary of State of the State of Delaware, dated within ten (10) Business Days prior to the Additional Closing Date, to the effect that NEP is in good standing in the State of Delaware;
(v) (A) a properly executed Internal Revenue Service Form W-9 of the Class A Purchaser (or, if the Class A Purchaser is disregarded as separate from its owner for U.S. federal income tax purposes, the Class A Purchaser’s regarded owner), and (B) a certificate of non-foreign status properly executed and completed by the Class A Purchaser (or, if the Class A Purchaser is disregarded as separate from its owner for U.S. federal income tax purposes, the Class A Purchaser’s regarded owner), dated as of the Additional Closing Date, substantially in the form specified in Treasury Regulations Section 1.1445-2(b)(2)(iv), in the case of each of clauses (A) and (B), such delivery to be made to the relevant Class B Purchaser and the Company; and
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(vi) such other documents contemplated by this Agreement as the Class B Purchasers or their respective counsel shall reasonably require.
(c) Deliveries of the Class B Purchasers. At or prior to the Additional Closing, if any, each Class B Purchaser set forth on Section III of Schedule A hereto shall deliver or cause to be delivered, to the Company the following:
(i) payment of such Class B Purchaser’s Additional Individual Class B Purchase Price, payable by wire transfer of immediately available funds to an account designated in advance of the Additional Closing Date by the Company;
(ii) a cross-receipt duly executed by each of the Class B Purchasers certifying that it has received from the Company the number of Additional Individual Class B Purchased Units to be received by such Class B Purchaser at the Additional Closing;
(iii) a certificate of an authorized officer of each Class B Purchaser, dated as of the Additional Closing Date, to the effect that the conditions set forth in Section 2.11(a) and Section 2.11(b) have been satisfied; and
(iv) such other documents contemplated by this Agreement as the Class A Purchaser or its respective counsel shall reasonably require.
Section 2.13 Further Assurances. From time to time after the Execution Date, subject to any other terms and conditions of this Agreement, without further consideration, the Company, NEP and each Purchaser shall use their commercially reasonable efforts to take, or cause to be taken, all actions necessary or appropriate to consummate the transactions contemplated by this Agreement.
Section 2.14 Withholding. The Class B Purchasers shall be entitled to deduct and withhold from any payments under this Agreement the amounts any Class B Purchaser is required to deduct and withhold under any applicable Law, and amounts so deducted or withheld shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
Section 2.15 Transaction Tax Treatment. The Parties shall treat, for federal income Tax purposes (and, where applicable, for state, local and foreign income Tax purposes), (a) the Initial Class B Units Sale as a transaction described in Situation 2 of Revenue Ruling 99-5, 1999-1 CB 434, with a portion of the Class B Purchaser’s contribution to the Company of the Initial Aggregate Class B Purchase Price being used by the Company, subject to Section 5.08, to purchase the Xxxxxx Membership Interests, and the remainder of the Initial Aggregate Class B Purchase Price being distributed to the Class A Purchaser as part of a disguised sale of property pursuant to Treasury Regulations Section 1.707-3, and (b) the Additional Class B Units Sale as an additional capital contribution by the Class B Purchaser to the Company of the Additional Aggregate Class B Purchase Price and a distribution of the amount thereof to the Class A Purchaser that is treated as a reimbursement of preformation expenditures pursuant to Treasury Regulations Section 1.707-4 to the extent of such expenditures, with the remainder being treated as a second installment payment under the disguised sale described in clause (a) of this Section 2.15, which shall be treated as an installment sale described in Section 453(b) of the Code. The Parties shall not take any position inconsistent with such treatment on any Tax Return or in connection with any Tax audit or proceeding except to the extent otherwise
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required pursuant to a “determination” within the meaning of Section 1313(a) of the Code (or any analogous provision of state, local or foreign Law). The Company shall make, and shall cause its applicable Subsidiaries to make, an election under Section 754 of the Code (and any corresponding election available under applicable state or local law) with respect to the taxable year that includes the Additional Closing Date.
Section 2.16 Portfolio Project Model Adjustment.
(a) The Portfolio Project Model agreed to by the Parties as of the date hereof is attached hereto as Schedule H (the “Execution Date Portfolio Project Model”). Within sixty (60) days, but in no event later than twenty-four (24) Business Days, prior to the Initial Closing Date (as shall be set forth in the Notice of Initial Closing delivered pursuant to Section 2.02(a) (or deemed delivered pursuant to Section 2.02(b))), the Class A Purchaser shall deliver to the Class B Purchaser Representative (A) an Environmental Report and (B) bring-down reports for any of the due diligence reports from the independent engineer, insurance consultant, transmission consultant, and, as applicable, wind consultant, in each case, (i) with respect to each of the Projects (other than the Xxxxxx Solar Project), and (ii) solely to the extent that any such due diligence reports is dated more than 60 days prior to the Initial Closing Date. in which event, each such bring-down report shall be dated no earlier than sixty (60) days prior to the Initial Closing Date (or, in lieu of such bring-down reports, written confirmation from the applicable independent engineer, insurance consultant, transmission consultant or wind consultant, that there were no changes to such engineer’s or consultant’s report used, in part, as the basis for the Execution Date Portfolio Project Model) (collectively, the “Bring-Down Consultant Reports”). Within forty-five (45) days, but in no event later than nineteen (19) Business Days, prior to the Initial Closing Date (as shall be set forth in the Notice of Initial Closing delivered pursuant to Section 2.02(a) (or deemed delivered pursuant to Section 2.02(b))), the Class A Purchaser shall deliver to the Class B Purchaser Representative the Portfolio Project Model revised, if necessary, to reflect any Pre-Closing Model Input Updates, and otherwise prepared in a manner consistent with the assumptions and procedures set forth in Sections I and II of Schedule I, and Section 5.08 (the “Initial Updated Portfolio Project Model”); provided that, without the prior written consent of the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers representing the right to acquire at least a majority of the Initial Aggregate Class B Purchased Units at the Initial Closing (as set forth in Section II of Schedule A hereto)), the Initial Updated Portfolio Project Model shall not reflect any changes to the value of any inputs, assumptions or methodology contained in the Portfolio Project Model from the values of such inputs, assumptions or methodology set forth in the Execution Date Portfolio Project Model, other than any Pre-Closing Model Input Updates. The first calendar period reflected in the Initial Updated Portfolio Project Model shall be adjusted such that the measurement period thereof shall begin on the Initial Closing Date. The Initial Updated Portfolio Project Model shall include the proposed resulting adjustments, if any, to (A) the Class B Purchase Price, (B) the Debt Financing Terms, (C) the Class B Internal Rate of Return, (D) the start date for the First Distribution Adjustment Period, (E) the percentage of the aggregate amount of Available Cash that constitutes the “Class B Reallocation Portion” (as defined in the A&R LLC Agreement) and/or (F) the percentage of the aggregate amount of Available Cash that constitutes the “Class B Reallocation Cap” (as defined in the A&R LLC Agreement) (collectively, (A) through (F), the “Applicable Transaction Terms”), in each case, solely to the extent such adjustments result from the Pre-Closing Model Input Updates (collectively, the “Transaction Term Adjustments”), as determined in good faith by the Class A Purchaser in accordance with the assumptions and procedures set forth in Sections I and II of Schedule I.
(i) If, within six (6) Business Days following delivery by the Class A Purchaser of such Initial Updated Portfolio Project Model to the Class B
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Purchaser Representative, the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers representing the right to acquire at least a majority of the Initial Aggregate Class B Purchased Units at the Initial Closing (as set forth in Section II of Schedule A hereto)) objects in a written notice delivered to the Class A Purchaser to any Pre-Closing Model Input Updates included in the Initial Updated Portfolio Project Model delivered by the Class A Purchaser and/or any resulting Transaction Term Adjustments (describing in reasonable detail the specific line items and values that are in dispute and the reasons for such dispute) (such written notice, an “Initial Closing Dispute Notice”), such disputed items shall be subject to the dispute resolution provisions set forth in Section 2.16(c) and Section 2.16(d). Any Pre-Closing Model Input Updates included in the Initial Updated Portfolio Project Model delivered by the Class A Purchaser and/or any resulting Transaction Term Adjustments that are not disputed in the Initial Closing Dispute Notice shall be final and binding on the Parties.
(ii) If the Class B Purchaser Representative does not deliver an Initial Closing Dispute Notice to the Class A Purchaser within six (6) Business Days following delivery by the Class A Purchaser of the Initial Updated Portfolio Project Model to the Class B Purchaser Representative, or if the Parties reach agreement during the Negotiation Period on each of the items and values set forth in the Initial Closing Dispute Notice prior to the Initial Closing, then the Initial Updated Portfolio Project Model delivered by the Class A Purchaser (or as may be mutually agreed upon by the Parties during the Negotiation Period) shall be final and binding on the Parties, and shall be deemed to be the Initial Closing Portfolio Project Model for all purposes of this Agreement and no adjustment shall be made to the Applicable Transaction Terms, other than (A) those Transaction Term Adjustments (if any) set forth in the Initial Closing Portfolio Project Model (as delivered by the Class A Purchaser or as may be mutually agreed upon by the Parties during the Negotiation Period), if any, and (B) if, and to the extent, required in connection with the Additional Closing pursuant to Section 2.16(b). NEP, the Class A Purchaser and the Company agree that, if the Initial Closing Portfolio Project Model becomes final and binding prior to the Initial Closing, each of NEP, the Class A Purchaser and the Company shall use its good faith, reasonable best efforts not to (and to cause their respective Controlled (as defined in the A&R LLC Agreement) Affiliates to use their good faith, reasonable best efforts not to) take any action prior to the Initial Closing that would reasonably be expected to impact or alter such final and binding Pre-Closing Model Input Updates (and resulting Transaction Term Adjustments, if any), except to the extent required by this Agreement, any Golden Plains Tax Equity Financing Document, or any Pine Brooke Tax Equity Financing Document.
(b) Within sixty (60) days, but in no event later than twenty-four (24) Business Days, prior to the proposed Additional Closing Date (as shall be as set forth in the Notice of Additional Closing delivered pursuant to Section 2.08(a) (or deemed delivered pursuant to Section 2.08(b))), the Class A Purchaser shall deliver to the Class B Purchaser Representative (A) an Environmental Report and (B) bring-down reports for any of the due diligence reports from the independent engineer, transmission consultant, and insurance consultant with respect to the Xxxxxx Solar Project, and solely to the extent that any such due diligence reports is dated more than 60 days prior to the Additional Closing Date in which event, each such bring-down report shall be dated no earlier than sixty (60) days prior to the proposed Additional Closing Date (or, in lieu of such bring-down reports, written confirmation from the applicable independent engineer, transmission consultant or insurance consultant that there were no changes to such engineer’s or consultant’s report used, in part, as the basis for the Execution Date Portfolio Project Model) (collectively, the “Xxxxxx Bring-Down
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Consultant Reports”). Within forty-five (45) days, but in no event later than nineteen (19) Business Days, prior to the Additional Closing Date (as shall be set forth in the Notice of Additional Closing delivered pursuant to Section 2.08(a) (or deemed delivered pursuant to Section 2.08(b))), the Class A Purchaser shall deliver to the Class B Purchaser Representative the Portfolio Project Model revised from the Initial Closing Portfolio Project Model, if necessary, to reflect any Additional Closing Model Input Updates, and otherwise prepared in a manner consistent with the assumptions and procedures set forth in Sections I and III of Schedule I hereto (the “Initial Additional Closing Portfolio Project Model”); provided that, without the prior written consent of the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers representing the right to acquire at least a majority of the Additional Aggregate Class B Purchased Units at the Additional Closing (as set forth in Section III of Schedule A hereto)), the Initial Additional Closing Portfolio Project Model shall not reflect any changes to the value of any inputs, assumptions or methodology contained in the Portfolio Project Model from the values of such inputs, assumptions or methodology set forth in the Initial Closing Portfolio Project Model, other than any Additional Closing Model Input Updates.
(i) The Initial Additional Closing Portfolio Project Model shall include the proposed resulting adjustments, if any, to the Applicable Transaction Terms, in each case, solely to the extent such adjustments result from the Additional Closing Model Input Updates (“Additional Transaction Adjustments”) as determined in good faith by the Class A Purchaser in accordance with the assumption and procedures set forth in Sections I and III of Schedule I hereto. If, within six (6) Business Days following delivery by the Class A Purchaser of such Initial Additional Closing Portfolio Project Model to the Class B Purchaser Representative, the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers representing the right to acquire at least a majority of the Additional Aggregate Class B Purchased Units at the Additional Closing (as set forth in Section III of Schedule A hereto)) objects in a written notice delivered to the Class A Purchaser to any Additional Closing Model Input Updates included in the Initial Additional Closing Portfolio Project Model delivered by the Class A Purchaser and/or any resulting Additional Transaction Adjustments (describing in reasonable detail the specific line items and values that are in dispute and the reasons for such dispute) (such written notice, an “Additional Closing Dispute Notice,” together with an Initial Closing Dispute Notice, each, a “Dispute Notice”), such disputed items shall be subject to the dispute resolution provisions set forth in Section 2.16(c), as applicable.
(ii) Any Additional Closing Model Input Updates included in the Initial Additional Closing Portfolio Project Model delivered by the Class A Purchaser and/or any resulting Additional Transaction Adjustments that are not disputed in the Initial Closing Dispute Notice shall be final and binding on the Parties. If the Class B Purchaser Representative does not deliver an Additional Closing Dispute Notice to the Class A Purchaser within six (6) Business Days following delivery by the Class A Purchaser of the Initial Additional Closing Portfolio Project Model to the Class B Purchaser Representative, or the Parties reach agreement during the Negotiation Period on each of the items and values set forth in the Additional Closing Dispute Notice prior to the Additional Closing, then the Initial Additional Closing Portfolio Project Model delivered by the Class A Purchaser (or as may be mutually agreed upon by the Parties during the Negotiation Period) shall be final and binding on the Parties, and shall be deemed the Additional Closing Portfolio Project Model for all purposes of this Agreement and no adjustment shall be made to the Applicable Transaction Terms, other than those Additional Transaction Adjustments (if any) set forth in the Additional
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Closing Portfolio Project Model (as delivered by the Class A Purchaser or as may be mutually agreed upon by the Parties during the Negotiation Period), if any.
(iii) Notwithstanding any other provision herein, in the event (A) of a Xxxxxx Holdback Event or Xxxxxx Return, the Execution Date Portfolio Project Model, the Initial Closing Portfolio Project Model or Additional Closing Portfolio Project Model, respectively, shall be adjusted to remove the Xxxxxx Solar Project in accordance with Section 5.08 or Section 5.09, respectively, and in accordance with the assumptions and procedures set forth in Schedule I or (B) that, if the Class B Purchasers do not acquire all of the Aggregate Class B Purchased Units at the Initial Closing, and thereafter, the obligations of the Parties to consummate the Additional Closing are validly terminated pursuant to Section 7.01(b)(ii)(1), Section 7.01(b)(ii)(2) or Section 7.01(b)(ii)(3) prior to the occurrence of the Additional Closing (including as a result of the failure of one or more conditions set forth in Section 2.09, Section 2.10 or Section 2.11 to be satisfied or waived), then, notwithstanding such failure to consummate the Additional Closing, the Parties shall revise the Initial Closing Portfolio Project Model pursuant to the terms of this Section 2.16(b), in accordance with the assumptions and procedures set forth in Schedule I hereto to account for such changes to the Initial Closing Portfolio Project Model as shall be required to reflect the fact that the purchase of the Additional Aggregate Class B Purchased Units did not occur.
(c) If the Class B Purchaser Representative timely delivers (x) an Initial Closing Dispute Notice with respect to the Class A Purchaser’s Pre-Closing Model Input Updates included in the Initial Updated Portfolio Project Model and/or any Transaction Term Adjustments pursuant to Section 2.16(a) or (y) an Additional Closing Dispute Notice with respect to the Class A Purchaser’s Additional Closing Model Input Updates included in the Initial Additional Closing Portfolio Project Model and/or any Additional Transaction Adjustments pursuant to Section 2.16(b), then the Class A Purchaser and the Class B Purchaser Representative shall in good faith attempt to resolve the particular items and values or Transaction Term Adjustments that are identified in the applicable Dispute Notice within ten (10) Business Days commencing on the date on which the applicable Dispute Notice is delivered to the Class A Purchaser (or such longer period as the Class A Purchaser and the Class B Purchaser Representative may mutually agree in writing, which period shall not extend beyond the Initial Closing Date, as set forth in the Notice of Initial Closing, or the Additional Closing Date, as set forth in the Notice of Additional Closing, as applicable) (such period, the “Negotiation Period”). If the Class A Purchaser and the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers representing the right to acquire at least a majority of the Initial Aggregate Class B Purchased Units at the Initial Closing (as set forth in Section II of Schedule A hereto), or those Class B Purchasers representing the right to acquire at least a majority of Additional Aggregate Class B Purchased Units at the Additional Closing (as set forth in Section III of Schedule A hereto), as applicable) do not reach agreement on each of the particular items and values set forth in the applicable Dispute Notice during the Negotiation Period, then:
(i) the Parties shall consummate the Initial Closing (subject to the satisfaction or waiver of the conditions set forth in Section 2.03, Section 2.04, Section 2.05, and Section 2.06) or the Additional Closing (subject to the satisfaction or waiver of the conditions set forth in Section 2.09, Section 2.10, and Section 2.11), as applicable, on the Initial Closing Date set forth in the Notice of Initial Closing or Additional Closing Date set forth in the Notice of Additional Closing, as applicable;
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(ii) subject to Section 2.16(d), for purposes of the Initial Closing, (A) the Initial Updated Portfolio Project Model shall include only such Pre-Closing Model Input Updates (if any), and (B) the Applicable Transaction Terms shall be modified as of the Initial Closing to reflect only such Transaction Term Adjustments (if any), in each case, as (Y) shall not have been disputed by the Class B Purchaser Representative in the Initial Closing Dispute Notice or (Z) as shall have been agreed upon by the Parties during the Negotiation Period (the Initial Updated Portfolio Project Model, as may be adjusted as of the Initial Closing to reflect any changes referenced in clauses (A) and (B) of this Section 2.16(c)(ii), the “Interim Initial Closing Portfolio Project Model”); and
(iii) subject to Section 2.16(d), for purposes of the Additional Closing, (A) the Initial Additional Closing Portfolio Project Model shall include only such Additional Closing Model Input Updates (if any), and (B) the Applicable Transaction Terms shall be modified to reflect only such Additional Transaction Adjustments (if any), in each case, as (Y) shall not have been disputed by the Class B Purchaser Representative in the Additional Closing Dispute Notice or (Z) as shall have been agreed upon by the Parties during the Negotiation Period (the Initial Additional Closing Portfolio Project Model, as may be adjusted as of the Additional Closing to reflect any changes referenced in clauses (A) and (B) of this Section 2.16(c)(iii), the “Interim Additional Closing Portfolio Project Model”).
(d) To the extent that any particular items or values identified in an Initial Closing Dispute Notice or Additional Closing Dispute Notice are not agreed upon pursuant to Section 2.16(c) prior to the Initial Closing or Additional Closing, respectively (“Remaining Disputed Matters”), and remain in dispute between the Class A Purchaser and the Class B Purchaser Representative at the time of the Initial Closing or Additional Closing, as applicable, then for a period of thirty (30) days following the Initial Closing or Additional Closing, as applicable, either the Class A Purchaser or the Class B Purchaser Representative shall be entitled to submit any such Remaining Disputed Matters to the Independent Expert for resolution of such dispute by delivering a written notice to the Independent Expert, with a copy to each other Party, describing in reasonable detail the specific line items and values comprising the Remaining Disputed Matters (and the reasons for such dispute) and such Party’s proposed resolution (and value) of each Remaining Disputed Matter. Each other Party shall be entitled to submit to the Independent Expert its proposed resolution (and value) of each Remaining Disputed Matter (and reasons therefor). In submitting any Remaining Disputed Matters to the Independent Expert, each of the Parties shall concurrently furnish, at its own expense, to the Independent Expert and the other Party such documents and information as the Independent Expert may reasonably request. Each Party may also furnish to the Independent Expert such other information and documents as it reasonably deems relevant, with copies of such submission and all such documents and information being concurrently furnished to the other Party. The Class A Purchaser and the Class B Purchaser Representative and their respective representatives shall cooperate fully with the Independent Expert. The Independent Expert, acting as an expert and not an arbitrator, shall resolve all Remaining Disputed Matters and shall determine the values to be ascribed thereto following the procedures stipulated in this Section 2.16 and the assumptions and procedures set forth in Schedule I and the resulting updates to the Interim Initial Closing Portfolio Project Model and Transaction Term Adjustments or Interim Additional Closing Portfolio Project Model and Additional Transaction Adjustments, as applicable; provided that, for the avoidance of doubt, the Interim Initial Closing Portfolio Project Model and Interim Additional Closing Portfolio Project Model shall be updated by the Parties as necessary to reflect any change in value ascribed to such specific disputed items that are determined by the Independent Expert, as applicable. The Parties hereby agree that the Independent
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Expert shall decide only the values ascribed to the specific disputed items in accordance with this Section 2.16 and the assumptions and procedures set forth in Sections I, II or III of Schedule I, as applicable and shall, within thirty (30) days after submission of any such dispute, deliver to the Class A Purchaser and the Class B Purchaser Representative a written determination of the amounts for each of the Remaining Disputed Matters, including the resulting adjustments to be made, if any, to the Applicable Transaction Terms (including all material calculations used in arriving at such determination and based solely on information provided to the Independent Expert by the Class B Purchaser Representative and the Class A Purchaser). The determination of the Independent Expert pursuant to this Section 2.16(d) shall, absent manifest error, be final, binding and conclusive on the Parties and their respective Affiliates, representatives, successors and assigns. All fees and expenses relating to the work, if any, to be performed by the Independent Expert will be borne equally by the Class A Purchaser and the Class B Purchaser Representative. Notwithstanding anything in this Agreement to the contrary, the dispute resolution mechanism contained in this Section 2.16(d) shall be the exclusive mechanism for resolving disputes, if any, regarding the determination of the Initial Closing Portfolio Project Model or the Additional Closing Portfolio Project Model and the resulting adjustments to be made, if any, to the Applicable Transaction Terms; provided, however, that, at any time, the Class A Purchaser and the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers representing the right to acquire at least a majority of the Initial Aggregate Class B Purchased Units at the Initial Closing (as set forth in Section II of Schedule A hereto), or those Class B Purchasers representing the right to acquire at least a majority of the Additional Aggregate Class B Purchased Units at the Additional Closing (as set forth in Section III of Schedule A hereto), as applicable) may agree in writing to settle any Remaining Disputed Matters submitted to the Independent Expert, which agreement shall be final, conclusive and binding upon all of the Parties with respect to such Remaining Disputed Matter(s) so resolved; provided that the Parties shall promptly provide a copy of such agreement to the Independent Expert and instruct the Independent Expert not to resolve such agreed-upon Remaining Disputed Matter(s), it being agreed that if the Independent Expert nonetheless resolves such agreed-upon Remaining Disputed Matter(s) for any reason, the agreement of the Parties shall control.
(e) Upon a final determination of any items or values set forth in a Dispute Notice pursuant to this Section 2.16 and in accordance with the assumptions and procedures set forth in Schedule I, each of the Parties shall execute such amendments to this Agreement and/or the A&R LLC Agreement (or, if prior to the Initial Closing, the Parties shall modify the form of the A&R LLC Agreement attached as Exhibit A hereto) as are necessary to reflect the finally determined Transaction Term Adjustments or Additional Transaction Adjustments, as applicable. If any final resolution of items or values set forth in a Dispute Notice shall (i) occur after the Initial Closing (with respect to an Initial Closing Dispute Notice) or Additional Closing (with respect to an Additional Closing Dispute Notice), as applicable, pursuant to Section 2.16(d) and in accordance with the assumptions and procedures set forth in Schedule I, and (ii) include as Transaction Term Adjustments following the Initial Closing or Additional Transaction Adjustments following the Additional Closing, as applicable, as finally determined in accordance with Section 2.16(d) and in accordance with the assumptions and procedures set forth in Schedule I, an adjustment to the amount of the Initial Aggregate Class B Purchase Price or Additional Aggregate Class B Purchase Price, as applicable, then, (A) if such Transaction Term Adjustments or Additional Transaction Adjustments include a reduction of the Initial Aggregate Class B Purchase Price or Additional Aggregate Class B Purchase Price, as applicable, then, an amount in cash equal to the amount of such reduction (the “Excess Purchase Price Amount”) shall, on the next date on which distributions are made to the Class A Purchasers pursuant to Article 5 of the A&R LLC Agreement (and, if necessary, on each subsequent distribution date until such Excess Purchase Price Amount has been paid in full) be withheld from such distribution to the Class A Purchaser and instead paid to the Class B Purchasers pursuant to, and in accordance with, the terms of
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Section 5.08 of the A&R LLC Agreement (each, a “Class B Purchase Price Return Offset”) and (B) if such Transaction Term Adjustments or Additional Transaction Adjustments include an increase to the Initial Aggregate Class B Purchase Price or Additional Aggregate Class B Purchase Price, as applicable, then, an amount in cash equal to the amount of such increase (the “Deficit Purchase Price Amount”) shall, on the next date on which distributions are made to the Class B Purchasers pursuant to Article 5 of the A&R LLC Agreement (and, if necessary, on each subsequent distribution date until such Deficit Purchase Price Amount has been paid in full) be withheld from such distribution to the Class B Purchasers and instead paid to the Class A Purchaser pursuant to, and in accordance with, the terms of Section 5.08 of the A&R LLC Agreement (each, a “Deficit Class B Purchase Price Offset”). Any Class B Purchase Price Return Offset or Deficit Class B Purchase Price Offset pursuant to this Section 2.16(e) in respect of an adjustment to the Class B Purchase Price shall be treated by the Parties as an adjustment to the Class B Purchase Price for all purposes of this Agreement, including Tax purposes unless otherwise required by law.
Section 2.17 Sponsor Pine Brooke PSA. Notwithstanding anything to the contrary in this Agreement, in the event that the Initial Closing occurs prior to the consummation of the PSA Closing, then the funds delivered by the Class B Purchasers to the Company constituting the Initial Aggregate Class B Purchase Price shall be held in a segregated account by the Company and such funds shall not be used or available for use for any reason until the earlier of (a) the consummation of the PSA Closing (and at such time, such funds shall be available for use by the Company to distribute to the Class A Purchaser the Initial Closing Distribution Amount in accordance with Section 2.01(f) and, subject to Section 5.08, and satisfaction or waiver of the conditions to consummation of the Xxxxxx PSA Closing, pay the Xxxxxx Purchase Price and consummate the Xxxxxx Acquisition), and (b) the earlier of (i) the date that the Sponsor Pine Brooke PSA has been validly terminated in accordance with its terms and (ii) the eleventh (11th) Business Day after the Initial Closing Date (or such later date as may be agreed in writing by the Class B Purchaser Representative (on behalf of all Class B Purchasers, and upon approval of those Class B Purchasers holding a majority of the Initial Aggregate Class B Purchased Units)), the Company, the Class A Purchaser and NEP. If the Sponsor Pine Brooke PSA shall have been terminated, or if the PSA Closing shall not have occurred, on or prior to the date set forth in subclause (i) or (ii), respectively, of clause (b) in the immediately preceding sentence, then, promptly following such date, which in no event shall be longer than two (2) Business Days thereafter, (1) each of the Company and the Class B Purchasers shall duly execute a contribution and assignment agreement with respect to the Initial Aggregate Class B Purchased Units re-conveying the Initial Aggregate Class B Purchased Units to the Company and (2) concurrently therewith, the Company shall return the Initial Aggregate Class B Purchase Price to the Class B Purchasers by wire transfer of immediately available funds to the account(s) designated by the Class B Purchaser Representative in writing and immediately upon such return (Y) each Class B Purchaser shall cease to be a member of the Company and shall have no rights or obligations as a member of the Company under the A&R LLC Agreement, the Act (as defined in the A&R LLC Agreement) or this Agreement (an “Initial Class B Purchased Units Return”) and (Z) this Agreement shall automatically terminate pursuant to Section 7.01(a).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
RELATED TO THE COMPANY ENTITIES
Except as set forth in the Disclosure Letter, each of (i) the Company hereby represents and warrants to the Class B Purchasers, solely with respect to those representations and warranties applicable to the Company Entities, (ii) NEP and the Class A Purchaser hereby represents and warrants to the Class B Purchasers, solely with respect to those representations and warranties applicable to the Company Entities (other than any representations and warranties
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applicable to the Project Companies, Acquired Assets or Contributed Assets and set forth in Section 3.06 (No Material Adverse Change), Section 3.09 (Litigation), and Section 3.22 (Tax)); (iii) the Class A Purchaser hereby represents and warrants to the Class B Purchasers solely with respect to those representations and warranties applicable to the Class A Purchaser, and (iv) NEP hereby represents and warrants to the Purchasers, solely with respect to those representations and warranties applicable to NEP, as follows:
Section 3.01 Existence.
(a) Each of the Company and NEP has been duly formed and is validly existing as a limited liability company or limited partnership, as the case may be, and is in good standing under the Laws of the State of Delaware and (i) has the full limited liability company or limited partnership, as applicable, power and authority to execute and deliver this Agreement and the other Transaction Documents to which the Company or NEP is a party and consummate the transactions contemplated hereby and thereby and (ii) in the case of the Company, will have, upon effectiveness of the A&R LLC Agreement on the Initial Issuance Date, full limited liability company power and authority to issue, sell, and deliver the Purchased Units.
(b) The Organizational Documents of the Company and NEP have been, and in the case of the A&R LLC Agreement, once executed and delivered on the Initial Issuance Date, will be, valid and legally binding agreements of the Company or NEP, as applicable, enforceable against the Company or NEP, as applicable, in accordance with their respective terms; provided that, with respect to each such agreement, the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws from time to time in effect affecting creditors’ rights and remedies generally and by general principles of equity (regardless of whether such principles are considered in a proceeding in equity or at law).
Section 3.02 Capitalization and Valid Issuance of Units.
(a) Immediately prior to the Initial Issuance, the Class A Purchaser will be the sole member of the Company and will hold of record and beneficially all of the issued and outstanding limited liability company interests of the Company. Upon execution and delivery of the A&R LLC Agreement on the Initial Issuance Date, (i) the authorized limited liability company interests of the Company will consist of the number of Class A Units and Class B Units listed in Section I of Schedule A hereto and (ii) immediately following consummation of the Initial Issuance, the Class A Purchaser will be the sole member of the Company and will hold of record and beneficially (A) the number of Class A Units set forth in Section II of Schedule A hereto opposite the Class A Purchaser’s name and (B) such number of Additional Aggregate Class B Purchased Units (if any) as shall be set forth in the Notice of Initial Closing, free and clear of all Liens, except for restrictions on transferability contained in the Delaware LLC Act, A&R LLC Agreement, and applicable state and federal securities Laws. The Class A Purchased Units and Additional Aggregate Class B Purchased Units shall have been, immediately prior to the Initial Issuance, duly authorized and validly issued in accordance with the A&R LLC Agreement and fully paid (to the extent required by the A&R LLC Agreement), subject to the provisions of the Delaware LLC Act and the A&R LLC Agreement. As of the Initial Closing Date, there will be no limited liability company interests of the Company issued or outstanding other than the Class A Purchased Units and the Aggregate Class B Purchased Units.
(b) The Initial Aggregate Class B Purchased Units shall be, immediately prior to the Initial Closing, duly authorized by the Company pursuant to the A&R LLC Agreement and, when issued and delivered to the Class B Purchasers against payment therefor in accordance with the terms of this Agreement, will be validly issued and fully paid (to the extent required by the A&R LLC
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Agreement), subject to the provisions of the Delaware LLC Act, and will be free of any and all Liens and restrictions on transfer, other than (i) restrictions on transfer under the A&R LLC Agreement, this Agreement, or applicable state and federal securities Laws, (ii) with respect to each Class B Purchaser’s Initial Individual Class B Purchased Units, such Liens as are created by such Class B Purchaser, and (iii) such Liens as arise under the A&R LLC Agreement or the Delaware LLC Act.
(c) The Additional Aggregate Class B Purchased Units shall be, immediately prior to the Initial Closing, duly authorized by the Company pursuant to the A&R LLC Agreement, and when issued and delivered to the Class A Purchasers at the Initial Closing against payment therefor in accordance with the terms of this Agreement, will be validly issued and fully paid (to the extent required by the A&R LLC Agreement), subject to the provisions of the Delaware LLC Act, and will be free of any and all Liens and restrictions on transfer, other than (i) restrictions on transfer under the A&R LLC Agreement, this Agreement, or applicable state and federal securities Laws, (ii) such Liens as are created by the Class A Purchaser, and (iii) such Liens as arise under the A&R LLC Agreement or the Delaware LLC Act.
(d) The Additional Aggregate Class B Purchased Units shall be, immediately following the Additional Class B Units Contribution and prior to the Additional Class B Units Sale, duly authorized by the Company pursuant to the A&R LLC Agreement, and when delivered to the Class B Purchasers at the Additional Closing against payment therefor in accordance with the terms of this Agreement, will be validly issued and fully paid (to the extent required by the A&R LLC Agreement), subject to the provisions of the Delaware LLC Act, and will be free of any and all Liens and restrictions on transfer, other than (i) restrictions on transfer under the A&R LLC Agreement, this Agreement, or applicable state and federal securities Laws, (ii) with respect to each Class B Purchaser’s Additional Individual Class B Purchased Units, such Liens as are created by such Class B Purchaser, and (iii) such Liens as arise under the A&R LLC Agreement or the Delaware LLC Act.
(e) Except for any such preemptive rights that have been waived or will be waived prior to the Initial Issuance, there are no Persons entitled to statutory, preemptive, or other similar contractual rights to subscribe for the Class A Purchased Units or the Aggregate Class B Purchased Units; and, except for the Class A Purchased Units or Aggregate Class B Purchased Units to be acquired pursuant to this Agreement, no options, warrants, or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, limited liability company or other ownership interests in the Company are outstanding.
(f) Upon the issuance of Issued NEP Non-Voting Units, such Issued NEP Non-Voting Units will be duly authorized, validly issued, and fully paid (to the extent required by the NEP Partnership Agreement), subject to the provisions of the Delaware LP Act, and will be free of any and all Liens and restrictions on transfer, other than (i) restrictions on transfer under the NEP Partnership Agreement, this Agreement or applicable state and federal securities Laws, (ii) with respect to each Class B Purchaser’s or its Affiliates’ Issued NEP Non-Voting Units, such Liens as are created by such Class B Purchaser or its Affiliates, and (iii) such Liens as arise under the NEP Partnership Agreement or the Delaware LP Act.
(g) Upon the issuance of Conversion Units upon conversion of the Issued NEP Non-Voting Units pursuant to the NEP Partnership Agreement, such Conversion Units will be duly authorized, validly issued, and fully paid (to the extent required by the NEP Partnership Agreement), subject to the provisions of the Delaware LP Act, and will be free of any and all Liens and restrictions on transfer, other than (i) restrictions on transfer under the NEP Partnership Agreement, this Agreement or applicable state and federal securities Laws, (ii) with respect to each Class B Purchaser’s or its
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Affiliates’ Conversion Units, such Liens as are created by such Class B Purchaser or its Affiliates, and (iii) such Liens as arise under the NEP Partnership Agreement or the Delaware LP Act.
Section 3.03 Ownership of the Class A Purchaser. Genesis Solar Funding Holdings, LLC is an indirect wholly owned subsidiary of NEP OpCo and is the sole record and beneficial owner of all of the limited liability company interests in the Class A Purchaser, free and clear of all Liens (other than transfer restrictions under the limited liability company agreement of the Class A Purchaser or applicable state and federal securities Laws and Liens imposed under any applicable agreement of Indebtedness or as arise under the Delaware LLC Act).
Section 3.04 Indebtedness; Liabilities. As of the Execution Date, the Company has, and until the consummation of the transactions contemplated by this Agreement the Company will have, no outstanding Indebtedness or other liabilities or obligations (known, unknown, accrued, absolute, contingent, determined or determinable, or otherwise), other than its obligations under this Agreement, the Asset Purchase Agreement, the Contribution Agreement, the Xxxxxx Purchase Agreement and obligations incurred in connection with the Company’s formation.
Section 3.05 Due Formation. The Company is duly formed, and is validly existing and in good standing under the Delaware LLC Act. Upon the effectiveness of the A&R LLC Agreement, the purposes of the Company will be acquiring, accepting, owning, holding, selling, leasing, transferring, financing, refinancing, exchanging, managing, and operating, directly or indirectly through its Subsidiaries, the Assets and any other assets acquired by the Company after the Initial Closing in accordance with the A&R LLC Agreement, together with the liabilities related thereto, including pursuant to the Asset Purchase Agreement, the Contribution Agreement, the Xxxxxx Purchase Agreement and any ancillary agreements executed in connection therewith.
Section 3.06 No Material Adverse Change. Since December 31, 2019, except as described in the NEP SEC Documents, there has not been any Material Adverse Effect.
Section 3.07 No Registration Required. Assuming the accuracy of the representations and warranties of each Purchaser contained in Article IV, the (a) Company’s issuance and sale at the Initial Closing of (i) the Class A Purchased Units and Additional Aggregate Class B Purchased Units to the Class A Purchaser and (ii) the Initial Aggregate Class B Purchased Units to the Class B Purchasers and (b) the sale by the Company of the Additional Aggregate Class B Purchased Units to the Class B Purchasers at the Additional Closing (if any), in each case, pursuant to this Agreement is exempt from registration requirements of the Securities Act, and neither the Company nor, to the Company’s Knowledge, any Person acting on its behalf, has taken nor will take any action hereafter that would cause the loss of such exemption.
Section 3.08 No Restrictions or Registration Rights. Except as described in the A&R LLC Agreement, this Agreement, the NEP Partnership Agreement, the 2019-A Registration Rights Agreement, the 2019-B Registration Rights Agreement, the 2019-C Registration Rights Agreement, the 2018 Registration Rights Agreement, the 2017-A Registration Rights Agreement, the 2017-B Registration Rights Agreement, or the NEP SEC Documents, (a) there are no restrictions upon the transfer of any of the Aggregate Class B Purchased Units, Issued NEP Non-Voting Units, or Conversion Units, nor any restrictions on the voting of any of the Aggregate Class B Purchased Units or Conversion Units, and (b) neither the offering and sale of the Class A Purchased Units and Aggregate Class B Purchased Units as contemplated by this Agreement, nor any issuance of Issued NEP Non-Voting Units or Conversion Units, gives rise to any rights for or relating to the registration of any of the Class A Purchased Units and Aggregate Class B Purchased Units or other securities of the Company.
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Section 3.09 Litigation. Except as described in the NEP SEC Documents, there are no actions, suits, claims, investigations, orders, injunctions, or proceedings pending or, to the Knowledge of the Company or NEP, threatened or contemplated, to which the Company Entities or any of their respective directors or officers is or would be a party or to which any of their respective properties is or would be subject at law or in equity, before or by any Governmental Authority, or before or by any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, NYSE), that would, individually or in the aggregate, if resolved adversely to the Company Entities, constitute a Material Adverse Effect, or that would challenge the validity of any of the Transaction Documents or the right of either of the Company or NEP to enter into any of the Transaction Documents or to consummate the transactions contemplated thereby.
Section 3.10 No Conflicts. The issuance and sale by the Company of the Class A Purchased Units and the Additional Aggregate Class B Purchased Units to the Class A Purchaser, the issuance and sale by the Company of the Initial Aggregate Class B Purchased Units to the Class B Purchasers, the sale, if any, by the Company of the Additional Aggregate Class B Purchased Units to the Class B Purchasers, the application of the proceeds thereof, the execution, delivery and performance of the Transaction Documents, the consummation of the transactions contemplated thereby, and the issuance by NEP of any Issued NEP Non-Voting Units or Conversion Units will not conflict with, result in any breach or violation of, constitute a default under (or constitute any event that, with notice, lapse of time or both, would result in any breach or violation of), (a) the Organizational Documents, as may be amended pursuant to this Agreement, of either the Company, the Class A Purchaser, or NEP, (b) any Contract to which any of the Company Entities is a party or by which any of the Company Entities or any of their respective properties may be bound or affected (including, for the avoidance of doubt, the Asset Purchase Agreement, the Contribution Agreement and the Xxxxxx Purchase Agreement), (c) any Material Contract (as that term is defined and used in the Asset Purchase Agreement and the Contribution Agreement), (d) any Law, (e) any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of NYSE), or (f) any decree, judgment or order applicable to any of the Company Entities or any of their respective properties, except in the cases of clauses (b) through (f) for any such conflicts, breaches, violations or defaults that would not, individually or in the aggregate, constitute a Material Adverse Effect.
Section 3.11 Authority; Enforceability. The Company will have all requisite power and authority under the A&R LLC Agreement, upon execution and delivery thereof on the Initial Issuance Date, and the Delaware LLC Act to (a) issue, sell and deliver the Class A Purchased Units and Additional Aggregate Class B Purchased Units to the Class A Purchaser, (b) issue, sell and deliver the Initial Aggregate Class B Purchased Units to the Class B Purchasers on the Initial Closing Date and (c) following the Additional Class B Units Contribution, sell and deliver the Additional Aggregate Class B Purchased Units to the Class B Purchasers on the Additional Closing Date, in each case, in accordance with and upon the terms and conditions set forth in this Agreement and the A&R LLC Agreement. NEP will have all requisite power and authority under the NEP Partnership Agreement, and the Delaware LP Act to issue any Issued NEP Non-Voting Units and Conversion Units in accordance with and upon the terms and conditions set forth in this Agreement and the NEP Partnership Agreement. All corporate, limited liability company, or limited partnership action required to be taken by the Company or NEP or any of their partners or members for (a) (i) the authorization, issuance, sale, and delivery of (A) the Class A Purchased Units and Additional Aggregate Class B Purchased Units to the Class A Purchaser at the Initial Issuance, (B) the Initial Aggregate Class B Purchased Units to the Class B Purchasers at the Initial Closing, and (ii) following the Additional Class B Units Contribution, the sale and delivery of the Additional Aggregate Class B Purchased Units to the Class B Purchasers at the Additional Closing (b) the execution and delivery of the Transaction Documents, and (c) the consummation of the transactions
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contemplated thereby, including the exercise of the Call Option, the issuance of NEP Non-Voting Units, and the issuance of Conversion Units, each in accordance with the A&R LLC Agreement and the NEP Partnership Agreement, shall have been validly taken at or prior to the Initial Issuance, Initial Closing, or the Additional Closing, as applicable. No approval from the holders of NEP Common Units or Series A Preferred Units is required for NEP to issue the Issued NEP Non-Voting Units or the Conversion Units, each in accordance with the A&R LLC Agreement and the NEP Partnership Agreement. Each of the Transaction Documents has been, or will be at or prior to the Initial Closing, duly and validly authorized and has been or, with respect to the A&R LLC Agreement to be delivered on the Initial Issuance Date, and the Transaction Documents to be delivered at the Initial Closing or Additional Closing, as applicable, will be, validly executed and delivered by the Company or NEP, as the case may be, and, to the Knowledge of the Company, each of the other parties thereto as of the Initial Closing or Additional Closing, as applicable. Each of the Transaction Documents constitutes, or will constitute on the Initial Issuance Date, at the Initial Closing or at the Additional Closing, as applicable, the legal, valid, and binding obligations of the Company or NEP, as the case may be, and, to the Knowledge of the Company and NEP, each of the parties thereto, in each case enforceable in accordance with its terms; provided that, with respect to each such agreement, the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws from time to time in effect affecting creditors’ rights and remedies generally and by general principles of equity (regardless of whether such principles are considered in a proceeding in equity or at law).
Section 3.12 Approvals. No Consent is required in connection with the issuance and sale of the Class A Purchased Units and Additional Aggregate Class B Purchased Units by the Company to the Class A Purchaser at the Initial Issuance, the issuance and sale of the Initial Aggregate Class B Purchased Units by the Company to the Class B Purchasers at the Initial Closing, following the Additional Class B Units Contribution, at the Additional Closing, if any, the sale of the Additional Aggregate Class B Purchased Units by the Company to the Class B Purchasers, the issuance by NEP of any Issued NEP Non-Voting Units upon exercise of the Call Option, the NEP Change of Control Option, or the Class B COC Option, or the issuance by NEP of Conversion Units upon conversion of the Issued NEP Non-Voting Units, the execution, delivery and performance of this Agreement and the other Transaction Documents by the Company or NEP or any other party thereto and the consummation by the Company and NEP of the transactions contemplated hereby or thereby, other than Consents (a) required by the Commission in connection with NEP’s obligations under the 2019-A Registration Rights Agreement, the 2019-B Registration Rights Agreement, the 2019-C Registration Rights Agreement, the 2018 Registration Rights Agreement and the 2017 Registration Rights Agreement, (b) required under applicable state securities or “blue sky” Laws, (c) set forth on Schedule F hereto, (d) that have been, or prior to the Initial Issuance Date or the Initial Closing Date, as applicable, will be, obtained, and (e) Consents, the absence or omission of which would not, individually or in the aggregate, have a Material Adverse Effect.
Section 3.13 Investment Company Status. Neither the Company nor NEP is, and upon the issuance and sale of the Purchased Units as herein contemplated and the application of the net proceeds therefrom, neither the Company nor NEP will be an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.
Section 3.14 Certain Fees. No broker, finder, or investment banker is entitled to any brokerage, finder’s, or other fee or commission from the Purchasers with respect to the sale of any of the Purchased Units or the consummation of the transactions contemplated by this Agreement or any of the other Transaction Documents based upon arrangements made by or on behalf of the Company or NEP.
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Section 3.15 Listing and Maintenance Requirements. The NEP Common Units are listed on the NYSE, and NEP has not received any notice of delisting. The issuance and sale of the Purchased Units and the issuance of any Issued NEP Non-Voting Units or Conversion Units will not contravene NYSE rules and regulations.
Section 3.16 Form S-3 Eligibility. NEP is eligible to register the Conversion Units, if and when issued, for resale by the Purchasers under Form S-3 promulgated under the Securities Act.
Section 3.17 No Side Agreements. There are no binding agreements by, among or between the Company or NEP or any of their Affiliates, on the one hand, and any Purchaser or any of its Affiliates, on the other hand, with respect to or relating to the transactions contemplated hereby other than the Confidentiality Agreement, the Transaction Documents, the Equity Commitment Letter, the Limited Guaranty, the Sponsor Pine Brooke PSA, the Company LLC Agreement, that certain Letter of Intent, dated as of the date hereof, by and between NEP and Kohlberg Kravis Xxxxxxx & Co. L.P., a Delaware limited partnership, and in each case, the agreements and instruments contemplated thereby.
Section 3.18 Affiliate Contracts and Support Obligations.
(a) Schedule G hereto sets forth a true and complete list as of the Execution Date of (i) all of the Affiliate Contracts and (ii) all Support Obligations, in each case with all material amendments, modifications, and supplements thereto. Each Affiliate Contract constitutes a legal, valid, binding and enforceable obligation of the Company Entity party thereto and, to the Knowledge of the Company, the other parties thereto, and is enforceable in accordance with its terms. Each Affiliate Contract and each Support Obligation is in full force and effect in all material respects.
(b) No Company Entity, nor to the Knowledge of the Company, any of the other parties thereto, is in material breach, violation, or default, and, to the Knowledge of the Company, no event, condition, or omission exists or has occurred which with notice or lapse of time or both would constitute any such material breach, violation, or default, or permit termination, modification, or acceleration by such other parties, under such Affiliate Contract.
(c) The Company has not received any notice that any Affiliate Contract is not in full force or effect or that any party to any of the Affiliate Contracts intends to terminate or fail to renew at the end of its term, materially increase or decrease any rates, costs, or fees charged to or payable by or to the Company or any of its Subsidiaries, or materially reduce the goods and services provided to or by the Company or any of its Subsidiaries under any such Affiliate Contract. The Company has made available to Purchasers true and complete copies of all Affiliate Contracts in effect as of the Execution Date.
Section 3.19 Anti-Corruption. None of the Company Entities or, to the Knowledge of the Company or NEP, any Associated Person of any Company Entity has taken any action, directly or indirectly, in violation of any Anti-Corruption Law; (b) no action, suit, or proceeding by or before any Governmental Authority involving the Company Entities with respect to any Anti-Corruption Law is pending or, to the Knowledge of the Company or NEP, threatened; and (c) the Company Entities and, to the Knowledge of the Company or NEP, their Affiliates have conducted their businesses in compliance with Anti-Corruption Laws in all material respects and have instituted and maintain policies and procedures reasonably designed to ensure, continued compliance therewith by the Company Entities in all material respects.
Section 3.20 Money Laundering Laws. The operations of each of the Company Entities are and have been conducted at all times in compliance in all material respects with applicable
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financial recordkeeping and reporting requirements of the Money Laundering Laws, and no action, suit or proceeding by or before any Governmental Authority involving the Company Entities with respect to the Money Laundering Laws is pending or, to the Knowledge of the Company or NEP, threatened.
Section 3.21 Sanctions. None of the Company Entities or, to the Knowledge of the Company or NEP, any Associated Person of any Company Entity is a Sanctioned Person nor transacting any business with or for the benefit of any Sanctioned Person. The Company Entities do not intend to directly or, to the Company’s Knowledge, indirectly use the proceeds of the sale of the Purchased Units to fund, in violation of applicable Sanctions, any business with a Sanctioned Person or in a Sanctioned Country. No action, suit, or proceeding by or before any Governmental Authority involving the Company Entities with respect to any applicable Sanctions is pending or, to the Knowledge of the Company or NEP, threatened.
Section 3.22 Tax. All material Tax Returns required to be filed by, or with respect to, the Company and each of its direct or indirect Subsidiaries have been timely filed (taking into account extensions). All such Tax Returns were prepared in accordance with applicable Law in all material respects and are true, correct and complete in all material respects. All material Taxes due and payable by, or with respect to, the Company and each of its direct or indirect Subsidiaries (whether or not shown on such Tax Returns) have been timely paid or have been adequately reserved in accordance with GAAP. The Company is and has been since its formation a disregarded entity for U.S. federal income tax purposes, and each of the Company’s direct or indirect Subsidiaries is and has been since its formation either a disregarded entity or a partnership for U.S. federal income tax purposes. None of the COD-Exempt Projects is subject to a claim or proceeding pursuant to which the U.S. Treasury Department has asserted that all or any portion of a Cash Grant previously claimed or awarded with respect to such COD-Exempt Project is subject to recapture.
Section 3.23 No Other Representations. Except for the representations and warranties expressly set forth in this Article III or as expressly set forth in the Asset Purchase Agreement or the Contribution Agreement, none of the Company Entities or any Affiliate or Representative of the Company Entities makes any representation or warranty, whether oral or written, express or implied, statutory or otherwise, with respect to the Company Entities, the Class A Purchased Units or Aggregate Class B Purchased Units, or the Assets or with respect to any other information provided or made available to the Purchasers in connection with the transactions contemplated by this Agreement, including any information, documents, projections, estimates, budgets, forecasts, or other material made available to the Purchasers or to their respective Representatives in any electronic data room or otherwise in expectation of the transactions contemplated by this Agreement, and any such other representations or warranties are hereby expressly disclaimed, and none shall be implied at law or in equity.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS
Each of the Purchasers, severally but not jointly, represents and warrants to the Company and NEP, and the Class B Purchasers, severally but not jointly, represents and warrants to the Class A Purchaser, as follows; provided, however, that the representations and warranties set forth in the second sentence of Section 4.01 and in Section 4.06 and Section 4.12 are made solely by the Class B Purchasers:
Section 4.01 Existence. Such Purchaser is duly organized or formed, and is validly existing and in good standing under the Laws of its state of organization or formation, with all necessary
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power and authority to own its properties and to conduct its business as currently conducted. The Class B Purchasers engage in no business other than acquiring, owning, holding, selling, transferring, and financing the Aggregate Class B Purchased Units.
Section 4.02 Authorization; Enforceability. Such Purchaser has all necessary legal power and authority to enter into, deliver and perform its obligations under the Transaction Documents to which it is a party, and to consummate the transactions contemplated thereby. The execution, delivery and performance of such Transaction Documents by such Purchaser and the consummation by such Purchaser of the transactions contemplated thereby have been duly and validly authorized by all necessary legal action on the part of such Purchaser, and no further consent or authorization by or on behalf of such Purchaser is required. Each of the Transaction Documents to which such Purchaser is a party has been or will be, on the Initial Issuance Date or at the Initial Closing, as applicable, duly executed and delivered by such Purchaser, and constitutes, or, when executed and delivered on the Initial Issuance Date or at the Initial Closing, as applicable, will constitute a legal, valid and binding obligation of such Purchaser; provided that, with respect to each such agreement, the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, or similar Laws from time to time in effect affecting creditors’ rights and remedies generally and by general principles of equity (regardless of whether such principles are considered in a proceeding in equity or at law).
Section 4.03 No Breach. The execution, delivery and performance of the Transaction Documents to which such Purchaser is a party by such Purchaser and the consummation by such Purchaser of the transactions contemplated thereby will not (a) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material agreement to which such Purchaser is a party or by which such Purchaser is bound or to which any of the property or assets of such Purchaser is subject, (b) conflict with or result in any violation of the provisions of the Organizational Documents of such Purchaser, or (c) violate any Law of any Governmental Authority or body having jurisdiction over such Purchaser or the property or assets of such Purchaser, except in the case of clauses (a) and (c), for such conflicts, breaches, violations, or defaults as would not prevent the consummation of the transactions contemplated by such Transaction Documents.
Section 4.04 Certain Fees. No fees or commissions are or will be payable by such Purchaser to brokers, finders, or investment bankers with respect to the purchase of any of the Purchased Units or the consummation of the transactions contemplated by this Agreement or any of the other Transaction Documents, except for fees or commissions for which none of the Company, the Class A Purchaser, NEP or any of their respective Affiliates shall be responsible.
Section 4.05 Unregistered Securities.
(a) Accredited Investor Status; Sophisticated Purchaser. Such Purchaser is an “accredited investor” within the meaning of Rule 501 under the Securities Act and is able to bear the risk of its investment in the Purchased Units and, with respect to each Class B Purchaser, any Issued NEP Non-Voting Units and Conversion Units, as may be applicable. Such Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the purchase of the Purchased Units and, with respect to each Class B Purchaser, the holding of any Issued NEP Non-Voting Units or Conversion Units, as applicable.
(b) Information. Such Purchaser and its Representatives have been furnished with all materials relating to the business, finances and operations of each of the Company and NEP that have been requested and any materials that have been requested by such Purchaser relating to the offer and sale of the Purchased Units and the issuance of any Issued NEP Non-Voting Units or
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Conversion Units. Such Purchaser and its Representatives have been afforded the opportunity to ask questions of each of the Company and NEP. Neither such inquiries nor any other due diligence investigations conducted at any time by such Purchaser and its Representatives shall modify, amend, or affect such Purchaser’s right (i) to rely on the Company’s or NEP’s, as applicable, representations and warranties contained in Article III above or (ii) to indemnification or any other remedy based on, or with respect to the accuracy or inaccuracy of, or compliance with, the representations, warranties, covenants and agreements in any Transaction Document. Such Purchaser understands that its purchase of the Purchased Units involves a high degree of risk. Such Purchaser has sought such accounting, legal, and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Purchased Units.
(c)