Common use of Assignment by the Operator Clause in Contracts

Assignment by the Operator. 13.1.1 With the modifications in clauses 13.1.3, 13.1.4, 13.1.5 and 13.1.6, the Operator shall not be enti- tled to assign, novate or otherwise transfer (in Danish: “enhver form for overdragelse”) any obliga- tions or rights under the Contract to any other party without the prior written approval of the DEA.‌ The DEA’s approval shall not be unreasonably withheld. Approval will only be granted where such transfer can take place without the risk of breach of the public procurement rules and where no material circumstances otherwise prevent such transfer. 13.1.2 Transfer shall also include any form of transfer where the legal entity of the Operator is changed. Transfer shall thus also include, but not limited to, any corporate restructuring, such as merger and demerger, where the legal entity of the Operator is changed. Reference is made, however, to clause 13.1.3. 13.1.3 The Operator shall be entitled to transfer its obligations and rights under the Contract (in whole, not in part) to an entity which is controlled by, controls or is under common control with the Operator on the following terms:‌ a) The entity has an average equity ratio of at least twenty (20) percentage and an average total annual turnover of at least DKK seven hundred and fifty million (750,000,000) based on the three latest annual reports/financial statements available at the time of the DEA’s written confirmation in item e). The equity ratio is calculated as the candidate’s total equity divided by the candidate’s total assets, calculated as a percentage. b) The Operator shall put at the entity’s disposal its technical and professional resources and shall ensure that the technical and professional resources of its Sub-Suppliers, including but not limited to any entity on which the Operator relied for prequalification with respect to technical and professional capacity, are also put at the disposal of the entity and thereby ensure that the entity will have, as a minimum, the same technical and professional capac- ity as the Operator has at its disposal; c) The transfer shall have no impact on any of the (new) Operator’s obligations under the Contract and shall not in any other way be detrimental to the proper performance of the Contract. For the avoidance of doubt, this also entails that the (new) Operator shall provide guarantees in accordance with clause 8 prior to the DEA’s written confirmation as set out in item f); d) The Operator shall warrant that the terms in items a) – d) above are fulfilled prior to the transfer of its obligations and rights; and e) The transfer shall require the DEA’s prior written confirmation that the DEA is satisfied that the terms in items a) – d) above are met and the Operator shall be obliged to provide any documentation that the DEA may reasonably require to verify that the terms are met. The DEA’s confirmation shall be provided without undue delay if the DEA is satisfied that the requirements in items a) – d) are met. 13.1.4 The Operator shall be entitled to transfer its obligations and rights under the Contract (in whole, not in part) to an entity which is controlled by or is under common control with the Operator and is established for the purpose of performing the CCS Activities (the Special Purpose Vehicle, “SPV”) on the following terms:‌ a) The Operator shall put at the SPV’s disposal its technical and professional resources and shall ensure that the technical and professional resources of its Sub-Suppliers, including but not limited to any entity on which the Operator relied for prequalification with respect to technical and professional capacity, are also put at the disposal of the SPV and thereby ensure that the SPV will have, as a minimum, the same technical and professional capacity as the Operator has at its disposal; b) The Operator shall assume joint and several liability with the SPV for the performance of the Contract and shall ensure that any entity on which the Operator relied for prequalification with respect to economic and financial capacity assumes joint and several liability with the SPV for the performance of the Contract on the same terms as set out in clauses 16.2.3 and 23.4; c) The transfer shall have no impact on any of the (new) Operator’s obligations under the Contract and shall not in any other way be detrimental to the proper performance of the Contract. For the avoidance of doubt, this also entails that the (new) Operator shall provide guarantees in accordance with clause 8 prior to the DEA’s written confirmation as set out in item e); d) The Operator shall warrant that the terms in items a) – c) above are fulfilled prior to the transfer of its obligations and rights; and e) The transfer shall require the DEA’s prior written confirmation that the DEA is satisfied that the terms in items a) – d) above are met and the Operator shall be obliged to provide any documentation that the DEA may reasonably require to verify that the terms are met. The DEA’s confirmation shall be provided without undue delay if the DEA is satisfied that the requirements in items a) – d) above are met. 13.1.5 Subject to the terms in clause 13.1.6, the Operator shall be entitled to transfer its obligations and rights under the Contract (in whole, not in part) to an entity which is controlled by, controls or is under common control with the Operator if the transfer is made due to an amendment of Danish energy supply legislation regarding the organisation of CCS or an amendment of other Danish legislation that affects the organisation of CCS, including but not limited to the following situations:‌ I. Where the Operator is a municipally owned entity or is owned by a municipally owned entity, and Carbon capture may be carried out as part of the main activities in the same legal entity as was prequalified and awarded the Contract in the tender process or a limited liability company established in accordance with item II below; or II. Where the Operator, who is a partnership (in Danish: “interessentskab”) owned by munici- palities, is reorganised into a limited liability company (in Danish: “kapitalselskab”). 13.1.6 Transfer as provided for in clause 13.1.5 shall be subject to the following terms:‌ a) The transfer shall have no impact on any of the Operator’s obligations under the Contract and shall not in any other way be detrimental to the proper performance of the Contract. For the avoidance of doubt, this also entails that the (new) Operator shall provide guarantees in accordance with clause 8 prior to the DEA’s written confirmation as set out in item c); b) The Operator shall warrant that the term in item a) above is fulfilled prior to the transfer of its obligations and rights; and c) The transfer shall require the DEA’s prior written confirmation that the DEA is satisfied that the terms in items a) – b) above and prerequisites in clause 13.1.5 are met and the Operator shall be obliged to provide any documentation that the DEA may reasonably require to verify that the terms and prerequisites are met. The DEA’s confirmation shall be provided without undue delay if the DEA is satisfied that the requirements in items a) – b) and the prerequisites in clause 13.1.5 are met.

Assignment by the Operator. 13.1.1 With the modifications in clauses 13.1.3, 13.1.4, 13.1.5 and 13.1.6, the Operator shall not be enti- tled to assign, novate or otherwise transfer (in Danish: “enhver form for overdragelse”) any obliga- tions or rights under the Contract to any other party without the prior written approval of the DEA.‌ The DEA’s approval shall not be unreasonably withheld. Approval will only be granted where such transfer can take place without the risk of breach of the public procurement rules and where no material circumstances otherwise prevent such transfer. 13.1.2 Transfer shall also include any form of transfer where the legal entity of the Operator is changed. Transfer shall thus also include, but not limited to, any corporate restructuring, such as merger and demerger, where the legal entity of the Operator is changed. Reference is made, however, to clause 13.1.3. 13.1.3 The Operator shall be entitled to transfer its obligations and rights under the Contract (in whole, not in part) to an entity which is controlled by, controls or is under common control with the Operator on the following terms:‌ a) The entity has an average equity ratio of at least twenty (20) percentage and an average total annual turnover of at least DKK seven hundred and fifty million (750,000,000) based on the three latest annual reports/financial statements available at the time of the DEA’s written confirmation in item e). The equity ratio is calculated as the candidate’s total equity divided by the candidate’s total assets, calculated as a percentage. b) The Operator shall put at the entity’s disposal its technical and professional resources and shall ensure that the technical and professional resources of its Sub-Suppliers, including but not limited to any entity on which the Operator relied for prequalification with respect to technical and professional capacity, are also put at the disposal of the entity and thereby ensure that the entity will have, as a minimum, the same technical and professional capac- ity as the Operator has at its disposal; c) The transfer shall have no impact on any of the (new) Operator’s obligations under the Contract and shall not in any other way be detrimental to the proper performance of the Contract. For the avoidance of doubt, this also entails that the (new) Operator shall provide guarantees in accordance with clause 8 prior to the DEA’s written confirmation as set out in item f); d) The Operator shall warrant that the terms in items a) – d) above are fulfilled prior to the transfer of its obligations and rights; and e) The transfer shall require the DEA’s prior written confirmation that the DEA is satisfied that the terms in items a) – d) above are met and the Operator shall be obliged to provide any documentation that the DEA may reasonably require to verify that the terms are met. The DEA’s confirmation shall be provided without undue delay if the DEA is satisfied that the requirements in items a) – d) are met. 13.1.4 The Operator shall be entitled to transfer its obligations and rights under the Contract (in whole, not in part) to an entity which is controlled by or is under common control with the Operator and is established for the purpose of performing the CCS Activities (the Special Purpose Vehicle, “SPV”) on the following terms:‌ a) The Operator shall put at the SPV’s disposal its technical and professional resources and shall ensure that the technical and professional resources of its Sub-Suppliers, including but not limited to any entity on which the Operator relied for prequalification with respect to technical and professional capacity, are also put at the disposal of the SPV and thereby ensure that the SPV will have, as a minimum, the same technical and professional capacity as the Operator has at its disposal; b) The Operator shall assume joint and several liability with the SPV for the performance of the Contract and shall ensure that any entity on which the Operator relied for prequalification with respect to economic and financial capacity assumes joint and several liability with the SPV for the performance of the Contract on the same terms as set out in clauses 16.2.3 and 23.4clause 16.2.3; c) The transfer shall have no impact on any of the (new) Operator’s obligations under the Contract and shall not in any other way be detrimental to the proper performance of the Contract. For the avoidance of doubt, this also entails that the (new) Operator shall provide guarantees in accordance with clause 8 prior to the DEA’s written confirmation as set out in item e); d) The Operator shall warrant that the terms in items a) – c) above are fulfilled prior to the transfer of its obligations and rights; and e) The transfer shall require the DEA’s prior written confirmation that the DEA is satisfied that the terms in items a) – d) above are met and the Operator shall be obliged to provide any documentation that the DEA may reasonably require to verify that the terms are met. The DEA’s confirmation shall be provided without undue delay if the DEA is satisfied that the requirements in items a) – d) above are met. 13.1.5 Subject to the terms in clause 13.1.6, the Operator shall be entitled to transfer its obligations and rights under the Contract (in whole, not in part) to an entity which is controlled by, controls or is under common control with the Operator if the transfer is made due to an amendment of Danish energy supply legislation regarding the organisation of CCS or an amendment of other Danish legislation that affects the organisation of CCS, including but not limited to the following situations:‌ I. Where the Operator is a municipally owned entity or is owned by a municipally owned entity, and Carbon capture may be carried out as part of the main activities in the same legal entity as was prequalified and awarded the Contract in the tender process or a limited liability company established in accordance with item II below; or II. Where the Operator, who is a partnership (in Danish: “interessentskab”) owned by munici- palities, is reorganised into a limited liability company (in Danish: “kapitalselskab”). 13.1.6 Transfer as provided for in clause 13.1.5 shall be subject to the following terms:‌ a) The transfer shall have no impact on any of the Operator’s obligations under the Contract and shall not in any other way be detrimental to the proper performance of the Contract. For the avoidance of doubt, this also entails that the (new) Operator shall provide guarantees in accordance with clause 8 prior to the DEA’s written confirmation as set out in item c); b) The Operator shall warrant that the term in item a) above is fulfilled prior to the transfer of its obligations and rights; and c) The transfer shall require the DEA’s prior written confirmation that the DEA is satisfied that the terms in items a) – b) above and prerequisites in clause 13.1.5 are met and the Operator shall be obliged to provide any documentation that the DEA may reasonably require to verify that the terms and prerequisites are met. The DEA’s confirmation shall be provided without undue delay if the DEA is satisfied that the requirements in items a) – b) and the prerequisites in clause 13.1.5 are met.