Page 135 - Yucaipa Valley Water District
P. 135
Director Memorandum No. 16-040 Page 15 of 24
of immediately available funds to bank account(s) designated by Assignee through written
instructions provided to Valley District before the Closing.
4. Holdback. An amount equal to five percent (5%) of the Purchase Price (“Holdback”)
shall be paid to Assignee one hundred eighty (180) days following the Closing, subject to the
payment conditions set forth herein. The Holdback shall be used to pay for any claims,
actions, encumbrances, fines or expenses (whether actual or threatened) of any kind
(“Claims”) related to ownership of the Capacity by EnerTech and Assignee. Valley District
shall provide Assignee written notice of any Claim within five (5) days of receipt of such
Claim. Upon receipt of the notice of Claim, Assignee shall have five (5) days to respond to
Valley District in writing indicating whether Assignee will fully satisfy or defend the Claim
or if Assignee will not cure the Claim. If Assignee notifies Valley District that it will satisfy
or defend the Claim, it shall have a reasonable amount of time to take appropriate steps to
resolve the Claim. If Assignee elects not to cure or defend the Claim, Valley District shall
have the right to use all or any portion of the Holdback to satisfy the Claim. Valley District’s
sole and exclusive recourse and remedy to satisfy a Claim or to recover for breach of any
representations or warranties made by Assignee herein shall be the Holdback pursuant to
this Section 4. At the end of the Holdback period, the remaining balance of the Holdback, if
any, shall be paid to Assignee in accordance with the same payment procedures set forth in
Section 3.
5. Valley District’s Representations and Warranties. Valley District hereby represents
and warrants to Assignee that all of the following statements are true, accurate and correct
as of the Effective Date and will be correct and complete as of the Closing Date as though
made then:
a. Valley District is a California municipal water district, duly organized and
validly existing under the laws of the State of California. Valley District has all necessary
power and authority to enter into this Agreement and all other documents that Valley
District is required to execute and deliver hereunder and holds all permits, licenses, orders
and approvals of all federal, state and local go vernmental or regulatory bodies necessary and
required therefor; and
b. Valley District has all requisite power and authority to perform its obligations
hereunder. The execution, delivery and performance by Valley District of this Agreement,
and the consummation of all the transactions contemplated hereby, have been duly and
validly authorized by Valley District. This Agreement, when executed and delivered by
Valley District, will be duly and validly executed and delivered and will be the valid and
binding obligations of Valley District, enforceable against Valley District, except as limited
by applicable bankruptcy, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally. Neither the execution and delivery of this
Agreement by Valley District, nor the performance by Valley District of its obligations under
this Agreement, will (i) result in a material violation or breach of, or permit any third party
to rescind any term or provision of, or constitute a default under, any loan, note, indenture,
mortgage, deed of trust, security agreement or material contract, license, lease or other
agreement to which Valley District is a party or by which Valley District is currently bound,
or (ii) to the best of Valley District’s knowledge, violate any law, statute, rule or regulation
or order, writ, judgment, injunction or decree of any court, administrative agency or
government body applicable to Valley District.
Yucaipa Valley Water District - April 20, 2016 - Page 133 of 158
of immediately available funds to bank account(s) designated by Assignee through written
instructions provided to Valley District before the Closing.
4. Holdback. An amount equal to five percent (5%) of the Purchase Price (“Holdback”)
shall be paid to Assignee one hundred eighty (180) days following the Closing, subject to the
payment conditions set forth herein. The Holdback shall be used to pay for any claims,
actions, encumbrances, fines or expenses (whether actual or threatened) of any kind
(“Claims”) related to ownership of the Capacity by EnerTech and Assignee. Valley District
shall provide Assignee written notice of any Claim within five (5) days of receipt of such
Claim. Upon receipt of the notice of Claim, Assignee shall have five (5) days to respond to
Valley District in writing indicating whether Assignee will fully satisfy or defend the Claim
or if Assignee will not cure the Claim. If Assignee notifies Valley District that it will satisfy
or defend the Claim, it shall have a reasonable amount of time to take appropriate steps to
resolve the Claim. If Assignee elects not to cure or defend the Claim, Valley District shall
have the right to use all or any portion of the Holdback to satisfy the Claim. Valley District’s
sole and exclusive recourse and remedy to satisfy a Claim or to recover for breach of any
representations or warranties made by Assignee herein shall be the Holdback pursuant to
this Section 4. At the end of the Holdback period, the remaining balance of the Holdback, if
any, shall be paid to Assignee in accordance with the same payment procedures set forth in
Section 3.
5. Valley District’s Representations and Warranties. Valley District hereby represents
and warrants to Assignee that all of the following statements are true, accurate and correct
as of the Effective Date and will be correct and complete as of the Closing Date as though
made then:
a. Valley District is a California municipal water district, duly organized and
validly existing under the laws of the State of California. Valley District has all necessary
power and authority to enter into this Agreement and all other documents that Valley
District is required to execute and deliver hereunder and holds all permits, licenses, orders
and approvals of all federal, state and local go vernmental or regulatory bodies necessary and
required therefor; and
b. Valley District has all requisite power and authority to perform its obligations
hereunder. The execution, delivery and performance by Valley District of this Agreement,
and the consummation of all the transactions contemplated hereby, have been duly and
validly authorized by Valley District. This Agreement, when executed and delivered by
Valley District, will be duly and validly executed and delivered and will be the valid and
binding obligations of Valley District, enforceable against Valley District, except as limited
by applicable bankruptcy, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally. Neither the execution and delivery of this
Agreement by Valley District, nor the performance by Valley District of its obligations under
this Agreement, will (i) result in a material violation or breach of, or permit any third party
to rescind any term or provision of, or constitute a default under, any loan, note, indenture,
mortgage, deed of trust, security agreement or material contract, license, lease or other
agreement to which Valley District is a party or by which Valley District is currently bound,
or (ii) to the best of Valley District’s knowledge, violate any law, statute, rule or regulation
or order, writ, judgment, injunction or decree of any court, administrative agency or
government body applicable to Valley District.
Yucaipa Valley Water District - April 20, 2016 - Page 133 of 158
