Common use of Waiver of Closing Conditions Clause in Contracts

Waiver of Closing Conditions. While Lender and Owner agree to continue to work in good faith to meet the conditions of Closing set forth in the Purchase Agreement, all Buyer’s conditions to Closing set forth in the Purchase Agreement, including, without limitation, the conditions to Closing set forth in Section 12.1 of the Purchase Agreement, are hereby waived except for the following (the “Material Closing Conditions”): (a) The Closing condition set forth in Section 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 waived the requirement that the Assumed Contracts be stamped prior to Closing, (B) Buyer has waived the delivery of the Power Plant Equipment Operation Agreement Amendment, and (C) Owner will terminate the Power Plant Equipment Operation Agreement on or prior to the 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 (iii) Section 17.11 (Negative Covenants) of the Purchase Agreement; (c) Owner shall perform and satisfy its obligations under Section 17.4 (Insurance) of the Purchase Agreement; (d) Subject to Owner’s delivery to Buyer of Owner’s Bring Down Certificate required pursuant to Paragraph 15(d) of this Amendment, the Closing condition set forth in Section 12.1(iii) shall be waived except to the extent of any material changes subsequent to the date hereof in any representations and warranties of Owner set forth in the Purchase Agreement caused by Owner, Lender and/or Operator on or after June 17, 2013; (e) The Closing condition set forth in Section 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 Owner to obtain a release or discharge 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 waiver of Lender and Owner’s obligation to release or discharge the SCES Charge shall 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 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 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 National Water Commission) it receives prior to the 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 other than the specified Material Closing Conditions (collectively, the “Immaterial Former Closing Conditions”), Buyer 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, Buyer hereby waives the satisfaction of the Immaterial Former Closing Conditions, agreeing that the Immaterial Former Closing Conditions no longer constitute conditions precedent to Buyer’s obligation to close the purchase of the Assets.

Waiver of Closing Conditions. While Lender 3.6.1 On or prior to the Asset Closing Date and Owner agree no later than December 31, 2016, by giving written notice to continue to work in good faith to meet the Seller, the Purchaser may waive conditionally or unconditionally, any or all of the conditions of Closing set forth in the Purchase Agreement, all Buyer’s conditions to Closing set forth in the Purchase Agreement, including, without limitation, the conditions to Closing set forth in Section 12.1 3.2. In the event that the Purchaser gives a written notice that all or any of the Purchase Agreement, are hereby waived except for the following (the “Material Closing Conditions”): (a) The Closing condition conditions set forth in Section 12.1(i) 3.2 have or has been fulfilled or waived, such written notice or waiver shall remain in full force not operate as the Purchaser’s nonreliance upon the representations and effect, provided such condition is modified warranties made by the Seller or release the Seller from any obligation required to reflect be performed by 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 waived the requirement that the Assumed Contracts be stamped prior to Closing, (B) Buyer has waived the delivery of the Power Plant Equipment Operation Agreement Amendment, and (C) Owner will terminate the Power Plant Equipment Operation Agreement Seller on or prior to the Asset Closing DateDate and no later than December 31, (ii) Section 17.5 (Golf Course Lease) 2016, instead, it shall represent only that the Purchaser will proceed with the closing of the Purchase 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 respect only this Agreement. 3.6.2 On or prior to monetary obligations of Owner under the Golf Course Lease through the Asset Closing Date (with such monetary obligations for and no later than December 31, 2016, by giving written notice to the period June 17Purchaser, 2013the Seller and the Guarantor may waive conditionally or unconditionally, through the Closing Date constituting Additional Costs under Section 7) and (iii) Section 17.11 (Negative Covenants) any or all of the Purchase Agreement; (c) Owner shall perform and satisfy its obligations under Section 17.4 (Insurance) of the Purchase Agreement; (d) Subject to Owner’s delivery to Buyer of Owner’s Bring Down Certificate required pursuant to Paragraph 15(d) of this Amendment, the Closing condition conditions set forth in Section 12.1(iii) shall be waived except to 3.3. In the extent event that the Seller and the Guarantor give a written notice that all or any of any material changes subsequent to the date hereof in any representations and warranties of Owner set forth in the Purchase Agreement caused by Owner, Lender and/or Operator on or after June 17, 2013; (e) The Closing condition conditions set forth in Section 12.1(iv) of 3.3 have or has been fulfilled or waived, such written notice or waiver shall not operate as the Purchase Agreement shall remain in full force nonreliance by the Seller or the Guarantor upon the representations and effect except that there shall warranties made by the Purchaser or release the Purchaser from any obligation required to be no obligation performed by the Purchaser on the part of Lender or Owner to obtain a release or discharge 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 waiver of Lender and Owner’s obligation to release or discharge the SCES Charge shall 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 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 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 National Water Commission) it receives prior to the Closing; (g) The Asset Closing condition set forth 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 Section 12.1(vii) shall remain in full force reliance on such representations, warranties and effect; (h) The Closing condition set forth in Section 12.1(viii) status of the Purchase Agreement shall remain in full force performance of such obligation, and effect; and (i) The Closing condition set forth in Section 12.1(ix) that each of the Purchase Agreement shall remain Seller and the Guarantor will reserve its right to hold the Purchaser liable for the relevant default 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 other than the specified Material Closing Conditions (collectively, the “Immaterial Former Closing Conditions”), Buyer 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, Buyer hereby waives the satisfaction of the Immaterial Former Closing Conditions, agreeing that the Immaterial Former Closing Conditions no longer constitute conditions precedent to Buyer’s obligation to close the purchase of the Assetsaccordance with this Agreement.

Waiver of Closing Conditions. While Lender and Owner agree (1) On or prior to continue the Asset Closing Date (by no later than the Long Stop Date), by giving written notice to work in good faith to meet the Seller, the Purchaser may waive conditionally or unconditionally, any or all of the conditions of Closing set forth in the Purchase Agreement, all Buyer’s conditions to Closing set forth in the Purchase Agreement, including, without limitation, the conditions to Closing set forth in Section 12.1 3.2. In the event that the Purchaser gives a written notice that all or any of the Purchase Agreement, are hereby waived except for the following (the “Material Closing Conditions”): (a) The Closing condition conditions set forth in Section 12.1(i) 3.2 have or has been fulfilled or waived, such written notice or waiver shall remain in full force not operate as the Purchaser’s non-reliance upon the representations and effect, provided such condition is modified warranties made by the Seller or release the Seller from any obligation required to reflect be performed by 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 waived the requirement that the Assumed Contracts be stamped prior to Closing, (B) Buyer has waived the delivery of the Power Plant Equipment Operation Agreement Amendment, and (C) Owner will terminate the Power Plant Equipment Operation Agreement Seller on or prior to the 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 Asset Closing Date (by no later than the 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 monetary obligations 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 period June 17, 2013, through relevant default in accordance with this Agreement. (2) On or prior to the Asset Closing Date constituting Additional Costs under Section 7) (by no later than the Long Stop Date), by giving written notice to the relevant Purchaser, the Seller and (iii) Section 17.11 (Negative Covenants) the Guarantor may waive conditionally or unconditionally, any or all of the Purchase Agreement; (c) Owner shall perform and satisfy its obligations under Section 17.4 (Insurance) of the Purchase Agreement; (d) Subject to Owner’s delivery to Buyer of Owner’s Bring Down Certificate required pursuant to Paragraph 15(d) of this Amendment, the Closing condition conditions set forth in Section 12.1(iii) shall be waived except to 3.3. In the extent event that the Seller and the Guarantor give a written notice that all or any of any material changes subsequent to the date hereof in any representations and warranties of Owner set forth in the Purchase Agreement caused by Owner, Lender and/or Operator on or after June 17, 2013; (e) The Closing condition conditions set forth in Section 12.1(iv) 3.3 have or has been fulfilled or waived, such written notice or waiver shall not operate as the 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 (by no later than the 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 Purchase Agreement shall remain performance of such obligation 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 full force and effect except that there accordance with this Agreement. For the avoidance of doubt, the Seller’s closing conditions shall be no obligation on fully satisfied or waived upon the part waiver by the Seller of Lender or Owner to obtain a release or discharge any and all of the Assignment Seller’s closing conditions in accordance with this Section. In such case, unless the Purchaser has and exercises the right to Southern Company Energy Solutionsunilaterally terminate this Agreement in accordance with this Agreement, Inc. created September 1, 2001, the Seller shall have the right to decline the request of the Purchaser to terminate this Agreement and registered December 1, 2001, as identified in Section B demand the Purchaser’s continued performance of Schedule 5.1(c) (the “SCES Charge”); provided, however, that such waiver of Lender this Agreement and Owner’s obligation to release or discharge the SCES Charge shall be expressly conditional upon Lender or Owner delivering entitled 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 request for specific performance of this reference replaces the form of Estoppel attached as Exhibit “I-2” to the 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 . Under any of the Assets prior to June 17circumstances described in the immediately preceding sentence, 2013; providedthe Purchaser waives in advance and irrevocably any of its claims and rights of defense, however, that Owner agrees to provide to Buyer copies of any notices of unpaid taxes or assessments (including, including without limitation, with respect 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 water charges from perform its obligations to purchase the National Water Commission) it receives prior 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 Closing; (g) The Closing condition set forth in Section 12.1(vii) 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 remain in full force and effect; (h) The Closing condition set forth in Section 12.1(viii) be assured that its requests for continued performance of the Purchase Agreement obligations by Purchaser to purchase the Target Assets and purpose of transaction shall remain in full force and effect; and (i) be achieved. The Closing condition set forth in Section 12.1(ix) of aforesaid obligations to purchase the Purchase Agreement Target Assets shall remain in full force and effect. If any conditions precedent at least include the obligations to Closing set forth in accept the Purchase Agreement which are the responsibility of Lender or Owner remain unsatisfied as of the Closing Date other than the specified Material Closing Conditions (collectivelyTarget Assets, the “Immaterial Former Closing Conditions”), Buyer shall nevertheless be obligated obligations to consummate the Closing without any adjustment Proposed Transaction and the obligations to pay 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, Buyer hereby waives the satisfaction of the Immaterial Former Closing Conditions, agreeing that the Immaterial Former Closing Conditions no longer constitute conditions precedent to Buyer’s obligation to close the purchase of the AssetsPrice.