Deliveries by Seller At the Closing, Seller shall deliver or cause to be delivered to Purchaser (unless previously delivered) each of the following:
(a) the officers’ certificate referred to in Section 9.2(d);
(b) a certified copy of the Sale Order and a copy of the docket of the Bankruptcy Court evidencing the entry of the Sale Order (updated through the date and time of the Closing); and
(c) the duly executed Xxxx of Sale and duly executed counterparts of each Conveyance Document in respect of the Acquired Assets;
(d) a duly executed Instrument of Assumption for the Designated Contracts and Assumed Liabilities;
(e) a certification of non-foreign status for Seller in a form and manner which complies with the requirements of Section 1445 of the Code and the Treasury regulations promulgated thereunder;
(f) if the Midland Facility has been included as a Core Asset hereunder, a special warranty deed to the Midland Facility conveying fee simple title to the Midland Facility to Purchaser subject to Permitted Liens;
(g) at Purchaser’s election and sole cost and expense, an owner’s or leasehold title insurance policy (as applicable), in effect as of the Closing Date, issued by Fidelity National Title Insurance Company or one of its affiliates, on an ALTA 2006 form or other form reasonably satisfactory to Purchaser, insuring Purchaser’s fee simple or leasehold title, as the case may be, to the Midland Facility, Devens Plant and Devens Land, subject to the Permitted Liens;
(h) executed copies of the consents and approvals referred to in Section 9.2(e); and
(i) all other documents required to be delivered by Seller to Purchaser at or prior to the Closing in connection with the Transactions.
Indemnity by Seller (a) Seller shall release, defend, indemnify and hold harmless Buyer, its directors, officers, agents, attorneys, representatives and Affiliates (“Buyer Group”) against and from any Indemnifiable Losses, which arise out of or relate to or are in any way connected with (i) the Seller’s delivery of the Product to Buyer, (ii) Seller’s or its Affiliates’ ownership, development, construction, operation and/or maintenance of the Project, including the Unit(s) and Sites(s); (iii) Third Party Claims arising from Seller’s or its Affiliates’ actions or inactions, including Seller’s breach of this Agreement or other agreements related to the development, construction, ownership, operation or maintenance of the Project, Unit(s), Seller’s Portfolio, or Site(s); (iv) any environmental matters associated with the Project, including the disposal and transportation of Hazardous Substances by or on behalf of the Seller or at the Seller’s direction or agreement; (v) Third Party Claims arising under any agreement between Seller or its Affiliates and a Customer in Seller’s Portfolio; or (vi) resulting from Seller’s or its Affiliates’ violation of any applicable Law, or requirements of Transmission Provider, Utility Distribution Company, NERC, WECC or Reliability Organization; in each case including any loss, claim, action or suit, for or on account of injury to, bodily or otherwise, or death of, persons, or for damage to or destruction or economic loss of property belonging to Buyer, Seller, Seller’s Affiliates, Customers or others, excepting only such Indemnifiable Losses, to the extent solely caused by the willful misconduct or gross negligence of a member of the Buyer Group.
(b) Seller shall indemnify, defend and hold the Buyer Group harmless from and against all liabilities, damages, claims, losses, costs or expenses (including, without limitation, attorneys' fees) incurred by or brought against Buyer in connection with Environmental Costs.
Conditions Precedent to Buyer’s Obligations The obligations of the Buyer to consummate the transactions contemplated by this Agreement are subject to the satisfaction or waiver by the Buyer, on or prior to the Closing Date, of each of the following conditions:
6.2.1 Each of the Seller’s representations and warranties in this Agreement are true and correct in all material respects (except for (i) representations or warranties qualified by materiality, Material Adverse Effect or similar qualifier (including through the use of any defined term containing any such qualifier) and (ii) the Fundamental Representations made by the Seller, which in each case of the foregoing clauses (i) and (ii), shall be true and correct in all respects subject to any such qualifiers contained therein), in each case on the date of this Agreement and on and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties made as of some other specified date, in which case they shall be true and correct on and as of such specified date).
6.2.2 The Seller shall have performed and complied, in all material respects, with all obligations and agreements required to be performed and complied with by it on or prior to the Closing Date except that (i) the covenants and obligations set forth in Sections 4.6 shall have been performed and complied with in all respects and (ii) solely for purposes of this Section 6.2.2, Seller’s commercially reasonable efforts to comply with the covenants and obligations set forth in Section 4.11 shall be deemed to fully satisfy the condition in this Section 6.2.2 with respect to such covenants and obligations.
6.2.3 Each of the Seller and the Company shall have performed and complied, in all material respects, with all obligations and agreements required to be performed and complied with by it on or prior to the Closing Date under the Midcon Agreement; and the Midcon Agreement shall be in full force and effect and the legal, valid, binding and enforceable obligation of the Seller, enforceable against the Seller in accordance with its terms, except as may be limited by the Remedies Exception.
6.2.4 Each Seller Party shall have delivered each document required to be delivered by it to the Buyer under this Agreement. UNIT PURCHASE AGREEMENT 59
6.2.5 There shall not have occurred after the date of this Agreement, a Material Adverse Effect, or any event or development that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
6.2.6 Each of the Consents identified on Schedule 1.4.7 shall have been obtained and be in full force and effect.
Conditions Precedent to Seller’s Obligations The obligation of the Sellers to consummate the transfer of the Transferred Assets to the Buyer on the Closing Date is subject to the satisfaction (or waiver by the Sellers) as of the Closing of the following conditions:
(a) Each of the representations and warranties made by the Buyer in this Agreement shall be true and correct in all respects as of the Closing Date as though such representations and warranties were made on and as of the Closing Date (except to the extent such representations and warranties relate to a specific date, in which case, such representations and warranties shall be true and correct in all respects as of such specific date), except for breaches or inaccuracies that would not reasonably be expected to have a material adverse effect on the Buyer or impair or delay the ability of the Buyer to consummate the transactions contemplated by this Agreement or the Closing Documents or otherwise perform its obligations under this Agreement or the Closing Documents;
(b) The Buyer shall have performed or complied in all material respects with each obligation and covenant required by this Agreement to be performed or complied with by the Buyer on or before the Closing.
(c) The Sellers shall have received all of the applicable documents required to be delivered by the Buyer under Article VI;
(d) No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect as of the Closing that restrains or prohibits the transfer of the Transferred Assets or the consummation of any other transaction contemplated hereby; and
(e) No action, suit or other proceeding shall have been commenced against Buyer or any Seller that would reasonably be expected to prevent the Closing.
