Common use of Waiver of Closing Conditions Clause in Contracts

Waiver of Closing Conditions. 3.6.1 On or prior to the Asset Closing Date and no later than December 31, 2016, by giving written notice to the Seller, the Purchaser may waive conditionally or unconditionally, any or all of the conditions set forth in Section 3.2. In the event that the Purchaser gives a written notice that all or any of the conditions set forth in Section 3.2 have or has been fulfilled or waived, such written notice or waiver shall not operate as the Purchaser’s nonreliance upon the representations and warranties made by the Seller or release the Seller from any obligation required to be performed by the Seller on or prior to the Asset Closing Date and no later than December 31, 2016, instead, it shall represent only that the Purchaser will proceed with the closing of the transactions under this Agreement in reliance on such representations, warranties and status of the performance of such obligation, and that the Purchaser will reserve its right to hold the Seller liable for the relevant default in accordance with this Agreement. 3.6.2 On or prior to the Asset Closing Date and no later than December 31, 2016, by giving written notice to the Purchaser, the Seller and the Guarantor may waive conditionally or unconditionally, any or all of the conditions set forth in Section 3.3. In the event that the Seller and the Guarantor give a written notice that all or any of the conditions set forth in Section 3.3 have or has been fulfilled or waived, such written notice or waiver shall not operate as the nonreliance by the Seller or the Guarantor upon the representations and warranties made by the Purchaser or release the Purchaser from any obligation required to be performed by the Purchaser on or prior to the Asset Closing Date and no later than December 31, 2016, instead, it shall represent only that the Seller and the Guarantor will proceed with the closing under this Agreement in reliance on such representations, warranties and status of the performance of such obligation, and that each of the Seller and the Guarantor will reserve its right to hold the Purchaser liable for the relevant default in accordance with this Agreement.

Waiver of Closing Conditions. 3.6.1 (1) On or prior to the Asset Closing Date and (by no later than December 31, 2016the Long Stop Date), by giving written notice to the Seller, the Purchaser may waive conditionally or unconditionally, any or all of the conditions set forth in Section 3.2. In the event that the Purchaser gives a written notice that all or any of the conditions set forth in Section 3.2 have or has been fulfilled or waived, such written notice or waiver shall not operate as the Purchaser’s nonreliance non-reliance upon the representations and warranties made by the Seller or release the Seller from any obligation required to be performed by the Seller on or prior to the Asset Closing Date and (by no later than December 31, 2016the Long Stop Date), instead, it shall represent only that the Purchaser will proceed with the closing of the transactions under this Agreement in reliance on such representations, warranties and status of the performance of such obligation, and that the Purchaser will reserve its right to hold the Seller liable for the relevant default in accordance with this Agreement. 3.6.2 (2) On or prior to the Asset Closing Date and (by no later than December 31, 2016the Long Stop Date), by giving written notice to the relevant Purchaser, the Seller and the Guarantor may waive conditionally or unconditionally, any or all of the conditions set forth in Section 3.3. In the event that the Seller and the Guarantor give a written notice that all or any of the conditions set forth in Section 3.3 have or has been fulfilled or waived, such written notice or waiver shall not operate as the nonreliance non-reliance by the Seller or the Guarantor upon the representations and warranties made by the Purchaser or release the Purchaser from any obligation required to be performed by the Purchaser on or prior to the Asset Closing Date and (by no later than December 31, 2016the Long Stop Date), instead, it shall represent only that the Seller and the Guarantor will proceed with the closing under this Agreement in reliance on such representations, warranties and status of the performance of such obligationobligation and demand the Purchaser’s performance of its closing obligations, and that each of the Seller and the Guarantor will reserve its right to hold the Purchaser liable for the relevant default in accordance with this Agreement. For the avoidance of doubt, the Seller’s closing conditions shall be fully satisfied or waived upon the waiver by the Seller of any and all of the Seller’s closing conditions in accordance with this Section. In such case, unless the Purchaser has and exercises the right to unilaterally terminate this Agreement in accordance with this Agreement, the Seller shall have the right to decline the request of the Purchaser to terminate this Agreement and demand the Purchaser’s continued performance of this Agreement and shall be entitled to request for specific performance of this Agreement. Under any of the circumstances described in the immediately preceding sentence, the Purchaser waives in advance and irrevocably any of its claims and rights of defense, including without limitation, termination of this Agreement at a cost of assumption of liability for breach and/or liability for damages and/or payment of termination fee and/or transfer of any other consideration, and the Purchaser shall not decline in any form the Seller’s request for continued performance of this Agreement, and shall continue to perform its obligations to purchase the Target Assets as appropriate. In the event that the Purchaser breaches any of its foregoing undertakings or obligations, in which case the Seller requests an arbitral tribunal to issue an award ordering the Purchaser to continue to perform its obligations to purchase the Target Assets, the Purchaser irrevocably waives any of its claims and/or rights of defense under any of such circumstances, including without limitation, termination of this Agreement at a cost of assumption of liability for breach and/or liability for damages and/or payment of termination fee and/or transfer of any other consideration, and any and all of its claims, rights of defense and/or any other rights/powers that may prevent and/or affect the Seller’s demand for or enforcement of specific performance by the Purchaser of its obligation to purchase the Target Assets, such that Seller shall be assured that its requests for continued performance of the obligations by Purchaser to purchase the Target Assets and purpose of transaction shall be achieved. The aforesaid obligations to purchase the Target Assets shall at least include the obligations to accept the Target Assets, obligations to consummate the Proposed Transaction and the obligations to pay the Purchase Price.

Waiver of Closing Conditions. 3.6.1 On or prior While Lender and Owner agree to continue to work in good faith to meet the Asset conditions of Closing Date and no later than December 31set forth in the Purchase Agreement, 2016all Buyer’s conditions to Closing set forth in the Purchase Agreement, by giving written notice to the Sellerincluding, without limitation, the Purchaser may waive conditionally or unconditionally, any or all of the conditions to Closing set forth in Section 3.2. In the event that the Purchaser gives a written notice that all or any 12.1 of the conditions Purchase Agreement, are hereby waived except for the following (the “Material Closing Conditions”): (a) The Closing condition set forth in Section 3.2 have or 12.1(i) shall remain in full force and effect, provided such condition is modified to reflect the deliveries expressly waived by Buyer pursuant to Section 15 of this Amendment; (b) Owner shall perform and satisfy in all material respects its obligations under (i) Section 17.3 (Contracts) of the Purchase Agreement, provided, however, that the Parties agree that (A) Buyer has been fulfilled or waivedwaived the requirement that the Assumed Contracts be stamped prior to Closing, such written notice or waiver shall not operate as (B) Buyer has waived the Purchaser’s nonreliance upon delivery of the representations Power Plant Equipment Operation Agreement Amendment, and warranties made by (C) Owner will terminate the Seller or release the Seller from any obligation required to be performed by the Seller Power Plant Equipment Operation Agreement on or prior to the Asset Closing Date, (ii) Section 17.5 (Golf Course Lease) of the Purchase Agreement with respect only to monetary obligations of Owner under the Golf Course Lease through the Closing Date (with such monetary obligations for the period June 17, 2013, through the Closing Date constituting Additional Costs under Section 7) and no later than December 31, 2016, instead, it shall represent only that the Purchaser will proceed with the closing (iii) Section 17.11 (Negative Covenants) of the transactions Purchase Agreement; (c) Owner shall perform and satisfy its obligations under this Agreement in reliance on such representations, warranties and status Section 17.4 (Insurance) of the performance Purchase Agreement; (d) Subject to Owner’s delivery to Buyer of such obligation, and that the Purchaser will reserve its right Owner’s Bring Down Certificate required pursuant to hold the Seller liable for the relevant default in accordance with Paragraph 15(d) of this Agreement. 3.6.2 On or prior to the Asset Closing Date and no later than December 31, 2016, by giving written notice to the PurchaserAmendment, the Seller and the Guarantor may waive conditionally or unconditionally, any or all of the conditions Closing condition set forth in Section 3.3. In 12.1(iii) shall be waived except to the event that extent of any material changes subsequent to the Seller date hereof in any representations and warranties of Owner set forth in the Guarantor give a written notice that all Purchase Agreement caused by Owner, Lender and/or Operator on or any of the conditions after June 17, 2013; (e) The Closing condition set forth in Section 3.3 have 12.1(iv) of the Purchase Agreement shall remain in full force and effect except that there shall be no obligation on the part of Lender or has been fulfilled Owner to obtain a release or waiveddischarge of the Assignment to Southern Company Energy Solutions, Inc. created September 1, 2001, and registered December 1, 2001, as identified in Section B of Schedule 5.1(c) (the “SCES Charge”); provided, however, that such written notice waiver of Lender and Owner’s obligation to release or waiver discharge the SCES Charge shall not operate be expressly conditional upon Lender or Owner delivering to Buyer at the Closing an estoppel with respect to the Power Plant Equipment Lease in the revised form in Exhibit “B” attached hereto which by this reference replaces the form of Estoppel attached as Exhibit “I-2” to the nonreliance by Purchase Agreement. (f) The Closing condition set forth in Section 12.1(vi) shall be limited to taxes or assessments which became due and constituted a lien, charge or encumbrance against any of the Seller Assets prior to June 17, 2013; provided, however, that Owner agrees to provide to Buyer copies of any notices of unpaid taxes or assessments (including, without limitation, with respect to water charges from the Guarantor upon the representations and warranties made by the Purchaser or release the Purchaser from any obligation required to be performed by the Purchaser on or National Water Commission) it receives prior to the Asset Closing; (g) The Closing condition set forth in Section 12.1(vii) shall remain in full force and effect; (h) The Closing condition set forth in Section 12.1(viii) of the Purchase Agreement shall remain in full force and effect; and (i) The Closing condition set forth in Section 12.1(ix) of the Purchase Agreement shall remain in full force and effect. If any conditions precedent to Closing set forth in the Purchase Agreement which are the responsibility of Lender or Owner remain unsatisfied as of the Closing Date and no later other than December 31the specified Material Closing Conditions (collectively, 2016the “Immaterial Former Closing Conditions”), insteadBuyer shall nevertheless be obligated to consummate the Closing without any adjustment to the Purchase Price or any recourse against Lender or Owner as a result of the failure to satisfy one or more of the Immaterial Former Closing Conditions, it shall represent only Buyer hereby waives the satisfaction of the Immaterial Former Closing Conditions, agreeing that the Seller and Immaterial Former Closing Conditions no longer constitute conditions precedent to Buyer’s obligation to close the Guarantor will proceed with the closing under this Agreement in reliance on such representations, warranties and status purchase of the performance of such obligation, and that each of the Seller and the Guarantor will reserve its right to hold the Purchaser liable for the relevant default in accordance with this AgreementAssets.