By Transferee. Subject to the terms and conditions of this Agreement, at the Closing, Transferee shall deliver to Transferor (or to the extent specifically set forth below, to Transferor’s designee or with respect to Section 2.4(b)(iii), to Xxxxxxx) each of the following items:
(i) a certificate, dated as of the Closing Date, certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied, duly executed by a Responsible Officer of the General Partner;
(ii) the Estimated Cash Consideration, by wire transfer of immediately available funds to an account specified by Transferor;
(iii) to Xxxxxxx, the New Common Units, by issuance of such New Common Units (in book-entry form) by instruction to Transferee’s transfer agent or otherwise, and evidence of such issuance that is reasonably satisfactory to Transferor;
(iv) a counterpart to the Interest Conveyance, duly executed by Enviva, LP;
(v) a counterpart to the Dong Contract Assignment, duly executed by Enviva, LP;
(vi) a counterpart to the Dong Letter Agreement, duly executed by Enviva, LP;
(vii) a counterpart to the Xxxxxxx Secondary Supply Agreement, duly executed by Transferee;
(viii) a counterpart to the Xxxxxxx-Wilmington Terminal Services Agreement, duly executed by Enviva, LP;
(ix) a counterpart to the Xxxxxxx-Chesapeake Terminal Services Agreement Termination, duly executed by Enviva Port of Chesapeake, LLC; and
(x) in the event the Xxxxxxx Threshold is met, a counterpart to the Registration Rights Agreement, duly executed by Transferee. The issuance of New Common Units to Xxxxxxx pursuant to Section 2.4(b)(iii) is intended to reflect (a) the issuance of the New Common Units to Transferor, followed immediately by (b) a distribution of the New Common Units to Xxxxxxx, and the Parties shall treat it consistently therewith.
By Transferee. Transferee represents and warrants to Transferor that:
5.2.1. Transferee is a regional water and sewer district which is a political subdivision of the State of Ohio, pursuant to Ohio Revised Code chapter 6119. Transferee has duly authorized the execution and performance of this Agreement, and such execution and performance will not violate its controlling documents, or any other agreement to which Transferee is a party. The individual executing this Agreement and the instruments and documents referenced herein on behalf of Transferee has the power, right, and authority to bind Transferee.
5.2.2. This Agreement is, and all agreements, instruments and documents to be executed and delivered by Transferee pursuant to this Agreement shall be duly authorized, executed and delivered by Transferee or its assignee. This Agreement is, and all agreements, instruments and documents to be executed and delivered by Transferee or its assignee pursuant to this Agreement shall be valid and legally binding upon Transferee or its assignee and enforceable in accordance with their respective terms.
5.2.3. Neither the execution of this Agreement nor the consummation of the transaction contemplated hereby does now constitute or shall result in the breach of, or a default under any agreement, document, instrument or other obligation to which Transferee is a party or by which Transferee may be bound, or any law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body, applicable to the Transferee or the Property.
By Transferee. Transferee shall indemnify, defend, and hold harmless Transferor, its Affiliates, and its and their respective members, managers, officers, directors, shareholders, licensors, and personnel (collectively, “Indemnitees”) from and against any and all Losses arising out of or based on: (i) any breach of Transferee’s representations and warranties set forth in Article 4; (ii) Transferee’s or its sublicensee’s unauthorized use of any Licensed Asset or any asset or right under a Third-Party License Agreement; and (iii) the development, formulation, manufacture, clinical trial, marketing, sale, distribution or any other use by or through Transferee of the Compound or Licensed Product, including all recalls warranty claims, and product liability claims arising in connection with the Compound or any Licensed Product manufactured, used or distributed by Transferee or its affiliates, agents, representatives or sublicensees; excluding, in each case, any Losses attributable to the negligence, willful misconduct or breach by Transferor of its obligations under the Services Agreement; and, excluding further, any losses for which Transferor has an indemnification obligation pursuant to Section 10.1.
By Transferee. Transferee hereby agrees to indemnify, protect, defend and hold Transferor and each present and former director, officer and employee of Transferor harmless from and against any claim, demand, obligation, loss, cost, damage, liability, judgment or expense (including, without limitation, reasonable attorneys’ fees, charges and disbursements) (collectively, “Claims”) arising out of or in connection with (i) the breach of any of Transferee’s representations or warranties set forth herein (subject to the survival limitations set forth in Section 9.6 hereof), (ii) the breach of any of Transferee’s covenants or agreements set forth herein, or (iii) any claim or cause of action brought by a third-party that arises as a result of an action or event that occurred after the Closing and during Transferee’s period of ownership or control of the applicable Property, that relates to the ownership of the Entity Interests, or the ownership, operation or maintenance of the Properties; provided, however, that Transferee’s obligation to indemnify Transferor under clause (i) above shall be subject to the following restrictions, (a) Transferee shall not be obligated to pay any amounts with respect to breaches of representations and warranties until the aggregate obligation of Transferee with respect to such breaches hereunder and under Section 14.1.1 of the Related Acquisition Agreement exceeds, in the aggregate, $250,000, whereupon Transferee shall be liable for all such amounts whether or not they exceed $250,000, and (b) in no event shall the aggregate liability of Transferee to Transferor with respect to breaches of representations and warranties hereunder and under Section 14.1.1 of the Related Acquisition Agreement exceed, in the aggregate, $7,500,000.
By Transferee. Subject to the terms and conditions of this Agreement, at the Closing, Transferee shall deliver to Transferor (or to the extent specifically set forth below, to its designee) each of the following items:
(i) the Cash Consideration, by wire transfer of immediately available funds to an account specified by Transferor;
(ii) to Enviva Development Holdings, LLC, the New Common Units, by issuance of such New Common Units (in book- entry form), by instruction to Transferee’s transfer agent or otherwise, and evidence of such issuance that is reasonably satisfactory to Transferor;
(iii) a counterpart to the Interest Conveyance, duly executed by Enviva, LP;
(iv) a counterpart to the Off-take Contract Assignment, duly executed by Enviva, LP;
(v) a counterpart to the Shipping Contract Assignment, duly executed by Enviva, LP;
(vi) a counterpart to the DAP Pellet Sales Confirmation Termination, duly executed by Enviva, LP;
(vii) a counterpart to the Terminal Services Agreement Termination, duly executed by Enviva Port of Chesapeake, LLC; and
(viii) a counterpart to the Registration Rights Amendment, duly executed by Transferee, Enviva MLP Holdco, LLC and Enviva Cottondale Acquisition I, LLC. The issuance of New Common Units to Enviva Development Holdings, LLC pursuant to Section 2.4(b)(ii) is intended to reflect (a) the issuance of the New Common Units to Transferor, followed immediately by (b) a distribution of the New Common Units to Enviva Development Holdings, LLC, and the Parties shall treat it consistently therewith.
By Transferee. Subject to the terms and conditions of this Agreement, at the Closing, Transferee shall deliver each of the following items:
(i) to Transferor, a certificate, dated as of the Closing Date, duly executed by a Responsible Officer of the Operator (as defined in the LLC Agreement) certifying that the conditions set forth in Section 6.2(a) and Section 6.2(b) have been satisfied;
(ii) to Enviva Member, 104,000,000 Class B Units issued in book entry form; CONTRIBUTION AGREEMENT
(iii) to Enviva Member, a duly executed counterpart to the Interest Conveyance with respect to the acceptance of the Contributed Interests by Transferee;
(iv) to Transferor, a copy of the Southampton Confirmation, duly executed by Transferee; and
(v) to Enviva Port of Chesapeake, LLC, a copy of the Chesapeake Terminal Services Agreement, duly executed by Transferee.
By Transferee. TRANSFEREE agrees to defend, indemnify and hold harmless TRANSFEROR and its affiliates, successors and assigns, and the officers, directors, employees and agents of each of them, from and against any and all claims, threatened claims, damages, losses, expenses, obligations, liabilities, actions, suits, including without limitation, interest and penalties, reasonable attorneys’ fees and costs and all amounts paid in settlement of any claim, action or suit, asserted by third parties against TRANSFEROR that arise out of, result from or are related to: (i) the violation of any statute, regulation or rule of Law by TRANSFEREE in the performance of its obligations under this Agreement; (ii) a breach or alleged breach of any representation, covenant, or warranty made by TRANSFEREE in this Agreement; (iii) activities taking place at TRANSFEREE’s facilities and that do not involve TRANSFEROR; (iv) a breach or alleged breach by TRANSFEREE of any of the other terms or conditions of this Agreement, or (v) the negligence or other wrongdoing of TRANSFEREE or its affiliates or any employee or agent of TRANSFEREE or its affiliates.
By Transferee. TRANSFEREE shall own any improvements, developments, additions, changes, and modifications, including Intellectual Property relating thereto, as may be from time to time made during the term of this Agreement by or for TRANSFEREE or its affiliates (excluding TRANSFEROR to the extent TRANSFEROR becomes an affiliate of TRANSFEREE), consultants, sublicensees or assignees.
By Transferee. Subject to the terms and conditions of this Agreement, at the Closing, Transferee shall deliver to Transferor (or to the extent specifically set forth below, to Transferor’s designee or with respect to Section 2.4(b)(iii), to Xxxxxxx) each of the following items:
(i) a certificate, dated as of the Closing Date, certifying that the conditions set forth in Section 6.3(a) and Section 6.3(b) have been satisfied, duly executed by a Responsible Officer of the General Partner;
(ii) the Estimated Closing Cash Consideration, by wire transfer of immediately available funds to an account specified by Transferor;
(iii) to the extent New Common Units are included as part of the Closing Purchase Price pursuant to Section 2.2, to Xxxxxxx, such New Common Units, by issuance of such New Common Units (in book-entry form) by instruction to Transferee’s transfer agent or otherwise, and evidence of such issuance that is reasonably satisfactory to Transferor;
(iv) a counterpart to the Interest Conveyance, duly executed by Enviva, LP;
(v) a counterpart to the Xxxxxxx-Wilmington TSA Termination Agreement, duly executed by Enviva, LP;
(vi) in the event the Xxxxxxx Threshold is met, a counterpart to the Registration Rights Agreement, duly executed by Transferee; and
(vii) a counterpart to the Hamlet-Wilmington Terminal Services Agreement among Wilmington, Hamlet and solely for the purposes set forth therein, Transferor, substantially in the form attached hereto as Exhibit G (“Hamlet-Wilmington TSA”), duly executed by Wilmington and to be held in escrow pending release upon delivery by Transferor of the Hamlet Payment Date Notice pursuant to Section 5.9.
By Transferee. Transferee hereby agrees to indemnify, protect, defend and hold PMB LLC and each Transferor harmless from and against any claim, demand, obligation, loss, cost, damage, liability, judgment or expense (including, without limitation, reasonable attorneys’ fees, charges and disbursements) (collectively, “Claims” and individually, a “Claim”) arising out of or in connection with (a) the breach of any of Transferee’s representations or warranties set forth herein (subject to the survival limitations set forth in Section 9.5 hereof), or (b) the breach of any of Transferee’s covenants or agreements set forth herein.
