Common use of Assignment by Xxxxx Clause in Contracts

Assignment by Xxxxx. Buyer may not at any time, without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed, assign, transfer, sell, pledge or encumber this Agreement or its rights hereunder to any Person; provided, however, that Buyer may, without the consent of Seller (i) transfer, sell, pledge, encumber or assign this Agreement or the account, revenues, or proceeds hereof in connection with any financing or other financial arrangements; (ii) transfer or assign this Agreement to (a) an Affiliate of Buyer, provided, that such Affiliate has creditworthiness at the time of such transfer or assignment that is equal to or higher than that of Buyer as of the time of the transfer or assignment, as evidenced by audited financial statements, or (iii) transfer or assign this Agreement to any Person succeeding to all or substantially all of the assets of Buyer whose creditworthiness, such transfer or assignment, is equal to or higher than that of Buyer as of the time of the transfer or assignment, as evidenced by audited financial statements; provided further, however, that in each such case, any such assignee shall agree in writing to be bound by the terms and conditions hereof and so long as Buyer delivers such tax and enforceability assurance as Seller may reasonably request. With respect to any permitted assignment or transfer of this Agreement in compliance with Section 15.2.1 above, the assignee or transferee or successor entity shall assume all of the duties and obligations of Buyer under this Agreement pursuant to an assignment and assumption agreement in which the assignee, transferee or successor entity unconditionally assumes and agrees to be bound by all of the terms and conditions of this Agreement as Buyer and whereby the assignee makes certain additional representations and warranties as appropriate for such assignee that are substantially similar to those contained in Section 12.2. Upon any permitted assignment or transfer by Buyer pursuant to Section 15.2.1, Buyer shall be, without further action by Seller, released and discharged from all obligations under this Agreement arising after the effective date of such assignment or transfer. Xxxxx agrees to compensate Seller for Seller’s reasonable costs and expenses incurred by its use of outside attorneys, consultants, accountants and advisors in connection with this Agreement in response to Buyer’s requests made pursuant to Section 15.2 (including this Section 15.2.2). Seller shall provide an invoice to Buyer for such charges, with appropriate documentation, and Buyer shall pay such invoice within thirty (30) Days. Lender(s) Seller may, subject to Parties’ compliance with requirements of this Section 15.3 which compliance shall constitute Buyer’s written consent, collaterally assign, or grant as security, beneficially or otherwise, its rights under this Agreement to Lenders for collateral security purposes in connection with any financing of the Project, or other financing arrangement; provided, however, that Seller’s obligations under this Agreement shall continue in their entirety in full force and effect as the obligations of a principal and not as a surety, and Seller shall remain fully liable for all of its obligations under or relating to this Agreement. Each such collateral assignment and any assignee, purchaser or transferee shall be subject to Buyer’s rights and defenses hereunder and under Legal Requirements. Seller shall provide prior notice to Buyer of any such collateral assignment. Buyer shall execute such consents, agreements or similar documents with respect to a collateral assignment hereof to Lender(s) as Xxxxxx(s) may reasonably request in connection with the documentation of the financing of the Project(s), including a consent to collateral assignment (“Consent Agreement”) in a form reasonably acceptable to Buyer. Xxxxxx agrees to pay for Xxxxx’s reasonable costs and expenses incurred in response to Seller’s and Xxxxxx’s requests, including attorney and consultant fees. Promptly after granting any such interest, Seller shall notify Buyer in writing of the name, address, and telephone and facsimile numbers of any Lender to which Seller’s interest under this Agreement has been assigned. Such notice shall include the names of the Lenders to whom all written and telephonic communications may be addressed. After giving Buyer such initial notice, Seller shall promptly give Buyer notice of any change in the information provided in the initial notice or any revised notice. Rights of Lender If Seller grants an interest under this Agreement as permitted by Section 15.3, the following provisions shall apply: Lender shall have the right, but not the obligation, to perform any act required to be performed by Seller under this Agreement to prevent or cure a Seller Event of Default in accordance with Section 6.1 and such act is timely performed by Lender shall be as effective to prevent or cure a default as if done by Seller. Within thirty (30) Days of the receipt of a written request from Seller or any Lender, Buyer, at Seller’s sole cost and expense, shall execute or arrange for the delivery of certificates, consents, opinions, estoppels, amendments and other documents reasonably requested by Seller or Lender in order to consummate any financing, or refinancing and shall enter into reasonable agreements with such Lender that provide that Buyer recognizes the rights of such Lender upon foreclosure of Lender’s security interest and such other customary provisions as may be reasonably requested by Seller or any such Lender. Buyer agrees that no Lender shall be obligated to perform any obligation or be deemed to incur any liability or obligation provided in this Agreement on the part of Seller or shall have any obligation or liability to Buyer with respect to this Agreement except to the extent any Lender has expressly assumed the obligations of Seller hereunder in a written agreement; provided that Buyer shall nevertheless be entitled to exercise all of its rights hereunder in the event that Seller or Lender fails to perform Seller’s obligations under this Agreement. Cure Rights of Lender The cure rights of Lender shall be as agreed in the Consent Agreement. Buyer shall accept a cure performed by any Lender so long as the cure is accomplished within the applicable cure period so agreed to between Buyer and any Lender. Notwithstanding any such action by any Lender, Seller shall not be released and discharged from and shall remain liable for any and all unsatisfied obligations to Buyer arising or accruing hereunder. Control of Seller At all times prior to and following Project COD, the Seller, and the managing member or manager of the Seller, as applicable, shall be a Person that is qualified, financially sound and (i) has at least two (2) years’ experience and capability involving the ownership and/or operation of comparable energy storage facilities of a size equal to or greater than the Project; or (ii) has engaged an operator to operate the Project with at least two (2) years’ experience and capability involving the operation of comparable energy storage facilities of a size equal to or greater than the Project; provided, however, that the Parties may agree to a different standard in a Consent Agreement with any Lender. Sale of Project Other than as set forth in Section 15.9, Seller may not, sell, transfer or assign its interest in the Project to a third party (other than an Affiliate of Seller that assumes all obligations to perform this Agreement and complies with the requirements of Sections 15.1.2 and 15.1.3) or sell, transfer or assign its interest in the Project to any Person succeeding to all or substantially all of the assets of Seller. New York State Finance Law Section 138 Notwithstanding any other provision of this Article 15, the provisions set forth in New York State Finance Law Section 138 shall apply. Buyer’s Purchase of the Project

Assignment by Xxxxx. Buyer may not at any time, without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed, assign, transfer, sell, pledge or encumber this Agreement or its rights hereunder to any Person; provided, however, that Buyer may, without the consent of Seller (i) transfer, sell, pledge, encumber or assign this Agreement or the account, revenues, or proceeds hereof in connection with any financing or other financial arrangements; , (ii) transfer or assign this Agreement to (a) an Affiliate of Buyer, provided, that such Affiliate has creditworthiness at the time of such transfer or assignment that is equal to or higher than that of Buyer as of the time of the transfer or assignment, as evidenced by audited financial statements, or (iii) transfer or assign this Agreement to any Person succeeding to all or substantially all of the assets of Buyer whose creditworthiness, creditworthiness at the time of such transfer or assignment, assignment is equal to or higher than that of Buyer as of the time of the transfer or assignment, as evidenced by audited financial statements; provided further, however, that in each such case, any such assignee shall agree in writing to be bound by the terms and conditions hereof and so long as Buyer delivers such tax and enforceability assurance as Seller may reasonably request. With respect to any permitted assignment or transfer of this Agreement in compliance with Section 15.2.1 above, the assignee or transferee or successor entity shall assume all of the duties and obligations of Buyer under this Agreement pursuant to an assignment and assumption agreement in which the assignee, transferee or successor entity unconditionally assumes and agrees to be bound by all of the terms and conditions of this Agreement as Buyer and whereby the assignee makes certain additional representations and warranties as appropriate for such assignee that are substantially similar to those contained in Section 12.2. Upon any permitted assignment or transfer by Buyer pursuant to Section 15.2.1, Buyer shall be, without further action by Seller, released and discharged from all obligations under this Agreement arising after the effective date of such assignment or transfer. Xxxxx agrees to compensate Seller for Seller’s reasonable costs and expenses incurred by its use of outside attorneys, consultants, accountants and advisors in connection with this Agreement in response to Buyer’s requests made pursuant to Section 15.2 (including this Section 15.2.2). Seller shall provide an invoice to Buyer for such charges, with appropriate documentation, and Buyer shall pay such invoice within thirty (30) Days. Lender(s) Notwithstanding Section 15.1 and the non-assignment provisions in Supplement 1, Seller may, subject to Parties’ compliance with requirements without the consent of this Section 15.3 which compliance shall constitute Buyer’s written consent, collaterally assign, or grant as security, beneficially or otherwise, its rights under this Agreement to Lenders for collateral security purposes in connection with any financing of the Project, Project or other financing arrangement; provided, however, that Seller’s obligations under this Agreement shall continue in their entirety in full force and effect as the obligations of a principal and not as a surety, and Seller shall remain fully liable for all of its obligations under or relating to this Agreement. Each such collateral assignment and any assignee, purchaser or transferee shall be subject to Buyer’s rights and defenses hereunder and under Legal Requirements. Seller shall provide prior notice to Buyer of any such collateral assignment. Buyer shall execute such consents, agreements or similar documents with respect to a collateral assignment hereof to Lender(s) as Xxxxxx(sLender(s) may reasonably request in connection with the documentation of the financing of the Project(s), including a consent to collateral assignment (“Consent Agreement”) in a form reasonably acceptable to Buyer, which form is set forth herein as Appendix 11. Xxxxxx agrees to pay for Xxxxx’s reasonable costs and expenses incurred in response to Seller’s and Xxxxxx’s requests, including attorney and consultant fees. Promptly after granting any such interest, Seller shall notify Buyer in writing of the name, address, and telephone and facsimile numbers of any Lender to which Seller’s interest under this Agreement has been assigned. Such notice shall include the names of the Lenders to whom all written and telephonic communications may be addressed. After giving Buyer such initial notice, Seller shall promptly give Buyer notice of any change in the information provided in the initial notice or any revised notice. Rights of Lender If Seller grants an interest under this Agreement as permitted by Section 15.3, the following provisions shall apply: Lender shall have the right, but not the obligation, to perform any act required to be performed by Seller under this Agreement to prevent or cure a Seller Event of Default in accordance with Section 6.1 6.1, and such act is timely performed by Lender shall be as effective to prevent or cure a default as if done by Seller. Within thirty (30) Days of the receipt of a written request from Seller or any Lender, Buyer, at Seller’s sole cost and expense, shall execute or arrange for the delivery of certificates, consents, opinions, estoppels, amendments and other documents reasonably requested by Seller or Lender in order to consummate any financing, financing or refinancing and shall enter into reasonable agreements with such Lender that provide that Buyer recognizes the rights of such Lender upon foreclosure of Lender’s security interest and such other customary provisions as may be reasonably requested by Seller or any such Lender. Buyer agrees that no Lender shall be obligated to perform any obligation or be deemed to incur any liability or obligation provided in this Agreement on the part of Seller or shall have any obligation or liability to Buyer with respect to this Agreement except to the extent any Lender has expressly assumed the obligations of Seller hereunder in a written agreementhereunder; provided that Buyer shall nevertheless be entitled to exercise all of its rights hereunder in the event that Seller or Lender fails to perform Seller’s obligations under this Agreement. Cure Rights of Lender The cure rights of Lender shall be as agreed in the Consent Agreement. Buyer shall accept a cure performed by any Lender so long as the cure is accomplished within the applicable cure period so agreed to between Buyer and any Lender. Notwithstanding any such action by any Lender, Seller shall not be released and discharged from and shall remain liable for any and all unsatisfied obligations to Buyer arising or accruing hereunder. Control of Seller At all times prior to and following Project COD, the Seller, and the managing member or manager of the Seller, as applicable, Seller shall be a Person that is qualified, financially sound and (i) has at least two (2) years’ years experience and capability involving the ownership and/or operation of utility scale renewable energy facilities comparable energy storage facilities of a size equal to or greater than the Project; or (ii) has engaged an operator to operate the Project with at least two (2) years’ experience and capability involving the operation of comparable energy storage facilities of a size equal to or greater than the Project; provided, however, that the Parties may agree to a different standard in a Consent Agreement with any Lender. Sale of Project Other than as set forth in Section 15.9, Seller may not, sell, transfer or assign its interest in the Project to a third party (other than an Affiliate of Seller that assumes all obligations to perform this Agreement and complies with the requirements of Sections 15.1.2 and 15.1.3) or sell, transfer or assign its interest in the Project to any Person succeeding to all or substantially all of the assets of Seller. New York State Finance Law Section 138 Notwithstanding any other provision of this Article 15, the provisions set forth in New York State Finance Law Section 138 shall apply. Buyer’s Purchase of the Project

Assignment by Xxxxx. 15.5.1 Buyer may not at any time, without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed, assign, transfer, sell, pledge or encumber this Agreement or its rights hereunder to any Person; provided, however, that Buyer may, without the consent of Seller (i) transfer, sell, pledge, encumber or assign this Agreement or the account, revenues, or proceeds hereof in connection with any financing or other financial arrangements; (ii) transfer or assign this Agreement to (a) an Affiliate of Buyer, provided, that such Affiliate has creditworthiness at the time of such transfer or assignment that is equal to or higher than that of Buyer as of the time of the transfer or assignment, as evidenced by audited financial statements, or (iii) transfer or assign this Agreement to any Person succeeding to all or substantially all of the assets of Buyer whose creditworthiness, such transfer or assignment, is equal to or higher than that of Buyer as of the time of the transfer or assignment, as evidenced by audited financial statements; provided further, however, that in each such case, any such assignee shall agree in writing to be bound by the terms and conditions hereof and so long as Buyer delivers such tax and enforceability assurance as Seller may reasonably request. . 15.5.2 With respect to any permitted assignment or transfer of this Agreement in compliance with Section 15.2.1 above, the assignee or transferee or successor entity shall assume all of the duties and obligations of Buyer under this Agreement pursuant to an assignment and assumption agreement in which the assignee, transferee or successor entity unconditionally assumes and agrees to be bound by all of the terms and conditions of this Agreement as Buyer and whereby the assignee makes certain additional representations and warranties as appropriate for such assignee that are substantially similar to those contained in Section 12.212.5. Upon any permitted assignment or transfer by Buyer pursuant to Section 15.2.1, Buyer shall be, without further action by Seller, released and discharged from all obligations under this Agreement arising after the effective date of such assignment or transfer. Xxxxx agrees to compensate Seller for Seller’s reasonable costs and expenses incurred by its use of outside attorneys, consultants, accountants and advisors in connection with this Agreement in response to Buyer’s requests made pursuant to Section 15.2 15.5 (including this Section 15.2.2). Seller shall provide an invoice to Buyer for such charges, with appropriate documentation, and Buyer shall pay such invoice within thirty (30) Days. Lender(s) Seller may, subject to Parties’ compliance with requirements of this Section 15.3 which compliance shall constitute Buyer’s written consent, collaterally assign, or grant as security, beneficially or otherwise, its rights under this Agreement to Lenders for collateral security purposes in connection with any financing of the Project, or other financing arrangement; provided, however, that Seller’s obligations under this Agreement shall continue in their entirety in full force and effect as the obligations of a principal and not as a surety, and Seller shall remain fully liable for all of its obligations under or relating to this Agreement. Each such collateral assignment and any assignee, purchaser or transferee shall be subject to Buyer’s rights and defenses hereunder and under Legal Requirements. Seller shall provide prior notice to Buyer of any such collateral assignment. Buyer shall execute such consents, agreements or similar documents with respect to a collateral assignment hereof to Lender(s) as Xxxxxx(s) may reasonably request in connection with the documentation of the financing of the Project(s), including a consent to collateral assignment (“Consent Agreement”) in a form reasonably acceptable to Buyer. Xxxxxx agrees to pay for Xxxxx’s reasonable costs and expenses incurred in response to Seller’s and Xxxxxx’s requests, including attorney and consultant fees. Promptly after granting any such interest, Seller shall notify Buyer in writing of the name, address, and telephone and facsimile numbers of any Lender to which Seller’s interest under this Agreement has been assigned. Such notice shall include the names of the Lenders to whom all written and telephonic communications may be addressed. After giving Buyer such initial notice, Seller shall promptly give Buyer notice of any change in the information provided in the initial notice or any revised notice. Rights of Lender If Seller grants an interest under this Agreement as permitted by Section 15.3, the following provisions shall apply: Lender shall have the right, but not the obligation, to perform any act required to be performed by Seller under this Agreement to prevent or cure a Seller Event of Default in accordance with Section 6.1 and such act is timely performed by Lender shall be as effective to prevent or cure a default as if done by Seller. Within thirty (30) Days of the receipt of a written request from Seller or any Lender, Buyer, at Seller’s sole cost and expense, shall execute or arrange for the delivery of certificates, consents, opinions, estoppels, amendments and other documents reasonably requested by Seller or Lender in order to consummate any financing, or refinancing and shall enter into reasonable agreements with such Lender that provide that Buyer recognizes the rights of such Lender upon foreclosure of Lender’s security interest and such other customary provisions as may be reasonably requested by Seller or any such Lender. Buyer agrees that no Lender shall be obligated to perform any obligation or be deemed to incur any liability or obligation provided in this Agreement on the part of Seller or shall have any obligation or liability to Buyer with respect to this Agreement except to the extent any Lender has expressly assumed the obligations of Seller hereunder in a written agreement; provided that Buyer shall nevertheless be entitled to exercise all of its rights hereunder in the event that Seller or Lender fails to perform Seller’s obligations under this Agreement. Cure Rights of Lender The cure rights of Lender shall be as agreed in the Consent Agreement. Buyer shall accept a cure performed by any Lender so long as the cure is accomplished within the applicable cure period so agreed to between Buyer and any Lender. Notwithstanding any such action by any Lender, Seller shall not be released and discharged from and shall remain liable for any and all unsatisfied obligations to Buyer arising or accruing hereunder. Control of Seller At all times prior to and following Project COD, the Seller, and the managing member or manager of the Seller, as applicable, shall be a Person that is qualified, financially sound and (i) has at least two (2) years’ experience and capability involving the ownership and/or operation of comparable energy storage facilities of a size equal to or greater than the Project; or (ii) has engaged an operator to operate the Project with at least two (2) years’ experience and capability involving the operation of comparable energy storage facilities of a size equal to or greater than the Project; provided, however, that the Parties may agree to a different standard in a Consent Agreement with any Lender. Sale of Project Other than as set forth in Section 15.9, Seller may not, sell, transfer or assign its interest in the Project to a third party (other than an Affiliate of Seller that assumes all obligations to perform this Agreement and complies with the requirements of Sections 15.1.2 and 15.1.3) or sell, transfer or assign its interest in the Project to any Person succeeding to all or substantially all of the assets of Seller. New York State Finance Law Section 138 Notwithstanding any other provision of this Article 15, the provisions set forth in New York State Finance Law Section 138 shall apply. Buyer’s Purchase of the Project.

Assignment by Xxxxx. (a) Buyer may shall not at assign this Agreement or any timeinterest herein, without the prior written consent of Seller; provided however that Seller shall not unreasonably withhold, condition or delay its consent for Buyer to change the Retail Service Address for which the Alternative On-Bill Credits will apply to another Retail Service Address, nor shall Seller unreasonably withhold, condition or delay its consent for Buyer to sell or transfer its interest or a fractional interest in this Agreement to another party that is Creditworthy and who agrees to comply with and assume all provisions under this Agreement (including, for the avoidance of doubt, pricing terms) and meets the requirements under Section 12.3(b) below. Such transfer shall be treated as a contract novation from the Buyer to the new party assuming Xxxxx’s responsibilities under this Agreement. In accordance with this Section 12.3, Buyer may transfer any fraction of its interests in this Agreement up to and including the full Buyer’s Allocated Percentage which would represent a full assignment. (b) Buyer’s request for Seller’s consent to any proposed change or assignment as contemplated in Section 12.3(a) shall be in in writing and furnished to Seller at least thirty (30) days prior to the proposed effective date of such change or assignment, which consent shall not be unreasonably withheld, conditioned or delayed, assign, transfer, sell, pledge or encumber this Agreement or its rights hereunder to any Person; provided, however, that Buyer may, without the consent of Seller request must include: (i) transfer, sell, pledge, encumber or assign this Agreement or the account, revenues, or proceeds hereof in connection with any financing or other financial arrangementsBuyer's name and mailing address; (ii) transfer the current Retail Service Address; (iii) the new Retail Service Address (if applicable); (iv) the name of the individual or entity to whom Xxxxx is requesting to assign this Agreement (if applicable) and the consideration (if any) proposed to be provided to Buyer for such assignment; and (av) an Affiliate of Buyer, provided, that such Affiliate has creditworthiness at the time proposed effective date of such transfer or assignment that is equal to or higher than that of Buyer as of the time of the transfer proposed change or assignment, as evidenced by audited financial statements, or (iii) transfer or assign this Agreement to . In the case of any Person succeeding to all or substantially all of the assets of Buyer whose creditworthiness, such transfer or assignment, is equal to or higher than that of Buyer as of the time of the transfer or assignment, as evidenced by audited financial statements; provided further, however, that in each such case, any such assignee shall agree in writing to be bound by the terms and conditions hereof and so long as Buyer delivers such tax and enforceability assurance as Seller may reasonably request. With respect to any permitted assignment or transfer of this Agreement in compliance whole or in part to another individual or entity, (i) such assignee's Retail Service Address shall be located within the Utility’s service territory as the System, (ii) such assignee shall be Creditworthy, (iii) Buyer shall reimburse Seller for Seller’s reasonable, documented transaction costs associated with Section 15.2.1 abovesuch assignment, the (iv) such assignee or transferee or successor entity shall assume all of the duties and obligations of Buyer under this Agreement pursuant to an assignment and assumption execute a novation agreement in which the assignee, transferee or successor entity unconditionally assumes and agrees to be bound by all of the terms and conditions of this Agreement as Buyer and whereby which shall specifically include the assignee makes certain additional representations and warranties as appropriate for set forth in Section 7.2 and a representation and warranty that such assignee that are substantially similar is Creditworthy, and (v) such assignment shall be effective upon the later to those contained in Section 12.2. Upon any permitted assignment or transfer by Buyer pursuant to Section 15.2.1, Buyer shall be, without further action by Seller, released and discharged from all obligations under this Agreement arising after occur of (A) the proposed effective date of such assignment or transfer. Xxxxx agrees to compensate Seller for Seller’s reasonable costs and expenses incurred by its use (B) the date upon which the Utility shall have approved such assignment. (c) Upon any assignment of outside attorneys, consultants, accountants and advisors in connection with this Agreement in response to Buyer’s requests made pursuant to Section 15.2 (including this Section 15.2.2). Seller shall provide an invoice 12.3, Xxxxx will surrender all right, title and interest in and to Buyer for such charges, with appropriate documentation, and Buyer shall pay such invoice within thirty (30) Days. Lender(s) Seller may, subject to Parties’ compliance with requirements the portion of this Section 15.3 which compliance shall constitute Buyer’s written consent, collaterally assign, or grant as security, beneficially or otherwise, its rights under this Agreement to Lenders for collateral security purposes in connection with any financing of the Project, or other financing arrangement; provided, however, that Seller’s obligations under this Agreement shall continue in their entirety in full force and effect as the obligations of a principal and not as a surety, and Seller shall remain fully liable for all of its obligations under or relating to this Agreement. Each such collateral assignment and any assignee, purchaser or transferee shall be subject to Buyer’s rights and defenses hereunder and under Legal Requirements. Seller shall provide prior notice to Buyer of any such collateral assignment. Buyer shall execute such consents, agreements or similar documents with respect to a collateral assignment hereof to Lender(s) as Xxxxxx(s) may reasonably request in connection with the documentation of the financing of the Project(s), including a consent to collateral assignment (“Consent Agreement”) in a form reasonably acceptable to Buyer. Xxxxxx agrees to pay for Xxxxx’s reasonable costs and expenses incurred in response to Seller’s and Xxxxxx’s requests, including attorney and consultant fees. Promptly after granting any such interest, Seller shall notify Buyer in writing of the name, address, and telephone and facsimile numbers of any Lender to which Seller’s interest under this Agreement has been assigned. Such notice Any purported assignment in contravention of this Section 12.3 shall include be of no force and effect and null and void ab initio. No assignment will extend the names Term of this Agreement. (d) If Buyer terminates its retail electric service with the Lenders Utility without first transferring Buyer’s Allocated Percentage to whom all written and telephonic communications may an eligible transferee, Buyer will forfeit its right to receive Alternative On-Bill Credits, but will continue to be addressed. After giving Buyer such initial notice, Seller shall promptly give Buyer notice of any change in responsible for the information provided in the initial notice or any revised notice. Rights of Lender If Seller grants an interest Payments under this Agreement as permitted by Section 15.3, the following provisions shall apply: Lender shall have the right, but not the obligation, to perform any act required to be performed by Seller under until this Agreement is terminated pursuant to prevent or cure a Seller Event of Default in accordance with Section 6.1 and such act is timely performed by Lender shall be as effective to prevent or cure a default as if done by Seller. Within thirty (30) Days of the receipt of a written request from Seller or any Lender, Buyer, at Seller’s sole cost and expense, shall execute or arrange for the delivery of certificates, consents, opinions, estoppels, amendments and other documents reasonably requested by Seller or Lender in order to consummate any financing, or refinancing and shall enter into reasonable agreements with such Lender that provide that Buyer recognizes the rights of such Lender upon foreclosure of Lender’s security interest and such other customary provisions as may be reasonably requested by Seller or any such Lender. Buyer agrees that no Lender shall be obligated to perform any obligation or be deemed to incur any liability or obligation provided terms in this Agreement on the part of Seller or shall have any obligation or liability to Buyer with respect to this Agreement except to the extent any Lender has expressly assumed the obligations of Seller hereunder in a written agreement; provided that Buyer shall nevertheless be entitled to exercise all of its rights hereunder in the event that Seller or Lender fails to perform Seller’s obligations under this Agreement. Cure Rights of Lender The cure rights of Lender shall be as agreed in the Consent Agreement. Buyer shall accept a cure performed by any Lender so long as the cure is accomplished within the applicable cure period so agreed to between Buyer and any Lender. Notwithstanding any such action by any Lender, Seller shall not be released and discharged from and shall remain liable for any and all unsatisfied obligations to Buyer arising or accruing hereunder. Control of Seller At all times prior to and following Project COD, the Seller, and the managing member or manager of the Seller, as applicable, shall be a Person that is qualified, financially sound and (i) has at least two (2) years’ experience and capability involving the ownership and/or operation of comparable energy storage facilities of a size equal to or greater than the Project; or (ii) has engaged an operator to operate the Project with at least two (2) years’ experience and capability involving the operation of comparable energy storage facilities of a size equal to or greater than the Project; provided, however, that the Parties may agree to a different standard in a Consent Agreement with any Lender. Sale of Project Other than as set forth in Section 15.9, Seller may not, sell, transfer or assign its interest in the Project to a third party (other than an Affiliate of Seller that assumes all obligations to perform this Agreement and complies with the requirements of Sections 15.1.2 and 15.1.3) or sell, transfer or assign its interest in the Project to any Person succeeding to all or substantially all of the assets of Seller. New York State Finance Law Section 138 Notwithstanding any other provision of this Article 15, the provisions set forth in New York State Finance Law Section 138 shall apply. Buyer’s Purchase of the Project.

Assignment by Xxxxx. (a) Buyer may shall not at assign this Agreement or any timeinterest herein, without the prior written consent of SellerSeller (except to a wholly-owned subsidiary of its parent or to an entity under common control, or pursuant to a merger, consolidation, reorganization, or a sale of substantially all of its assets, for which no consent is required, provided that, Buyer delivers to Seller written notice of such assignment, as soon as reasonably practicable, and such assignment does not affect the Guarantee, which consent shall not be unreasonably withheld, conditioned or delayed, assign, transfer, sell, pledge or encumber this Agreement or its rights hereunder to any Personremain in place and in full force and effect); provided, however, that Seller shall not unreasonably withhold, condition or delay its consent for Buyer mayto change the Retail Service Address for which the Credits will apply to another Retail Service Address that is eligible under the Value of Distributed Energy Resources Program to subscribe to the CDG Facility, without nor shall Seller unreasonably withhold, condition or delay its consent for Buyer to sell or transfer its interest or a fractional interest in this Agreement to another party with a credit rating that is equivalent or better than Xxxxx’s and who agrees to comply with and assume all provisions under this Agreement (including, for the avoidance of doubt, pricing terms) and meets the requirements under Section 12.3(b). Such transfer shall be treated as a contract novation from the Buyer to the new party to the extent that such party expressly assumes Buyer’s responsibilities under this Agreement. In accordance with and subject to this Section 12.3, Buyer may transfer any fraction of its interests in this Agreement up to and including the full Buyer’s Allocated Percentage which would represent a full assignment. (b) Buyer’s request for Seller’s consent to any proposed change or assignment as contemplated in Section 12.3(a) shall be in in writing and furnished to Seller at least thirty (30) days prior to the proposed effective date of Seller such change or assignment, which request must include: (i) transfer, sell, pledge, encumber or assign this Agreement or the account, revenues, or proceeds hereof in connection with any financing or other financial arrangementsBuyer's name and mailing address; (ii) transfer the current Retail Service Address; (iii) the new Retail Service Address (if applicable); (iv) the name of the individual or entity to whom Xxxxx is requesting to assign this Agreement (if applicable) and the consideration (if any) proposed to be provided to Buyer for such assignment; and (av) an Affiliate of Buyer, provided, that such Affiliate has creditworthiness at the time proposed effective date of such transfer or assignment that is equal to or higher than that of Buyer as of the time of the transfer proposed change or assignment, as evidenced by audited financial statements, or (iii) transfer or assign this Agreement to . In the case of any Person succeeding to all or substantially all of the assets of Buyer whose creditworthiness, such transfer or assignment, is equal to or higher than that of Buyer as of the time of the transfer or assignment, as evidenced by audited financial statements; provided further, however, that in each such case, any such assignee shall agree in writing to be bound by the terms and conditions hereof and so long as Buyer delivers such tax and enforceability assurance as Seller may reasonably request. With respect to any permitted assignment or transfer of this Agreement in compliance whole or in part to another individual or entity, (i) such assignee's Retail Service Address shall be located within the Utility’s service territory as the System, (ii) such assignee shall be Creditworthy, (iii) such assignee shall have a substantially similar eligible load to Buyer, (iv) Buyer shall reimburse Seller for Seller’s reasonable, documented transaction costs associated with Section 15.2.1 abovesuch assignment, the (v) such assignee or transferee or successor entity shall assume all of the duties and obligations of Buyer under this Agreement pursuant to an assignment and assumption execute a novation agreement in which the assignee, transferee or successor entity unconditionally assumes and agrees to be bound by all of the terms and conditions of this Agreement as Buyer and whereby which shall specifically include the assignee makes certain additional representations and warranties as appropriate for set forth in Section 7.2 and a representation and warranty that such assignee that are substantially similar is Creditworthy, and (vi) such assignment shall be effective upon the later to those contained in Section 12.2. Upon any permitted assignment or transfer by Buyer pursuant to Section 15.2.1, Buyer shall be, without further action by Seller, released and discharged from all obligations under this Agreement arising after occur of (A) the proposed effective date of such assignment or transfer. Xxxxx agrees to compensate Seller for Seller’s reasonable costs and expenses incurred by its use (B) the date upon which the Utility shall have approved such assignment. (c) Upon any assignment of outside attorneys, consultants, accountants and advisors in connection with this Agreement in response to Buyer’s requests made pursuant to Section 15.2 (including this Section 15.2.2). Seller shall provide an invoice 12.3, Xxxxx will surrender all right, title and interest in and to Buyer for such charges, with appropriate documentation, and Buyer shall pay such invoice within thirty (30) Days. Lender(s) Seller may, subject to Parties’ compliance with requirements the portion of this Section 15.3 which compliance shall constitute Buyer’s written consent, collaterally assign, or grant as security, beneficially or otherwise, its rights under this Agreement to Lenders for collateral security purposes in connection with any financing of the Project, or other financing arrangement; provided, however, that Seller’s obligations under this Agreement shall continue in their entirety in full force and effect as the obligations of a principal and not as a surety, and Seller shall remain fully liable for all of its obligations under or relating to this Agreement. Each such collateral assignment and any assignee, purchaser or transferee shall be subject to Buyer’s rights and defenses hereunder and under Legal Requirements. Seller shall provide prior notice to Buyer of any such collateral assignment. Buyer shall execute such consents, agreements or similar documents with respect to a collateral assignment hereof to Lender(s) as Xxxxxx(s) may reasonably request in connection with the documentation of the financing of the Project(s), including a consent to collateral assignment (“Consent Agreement”) in a form reasonably acceptable to Buyer. Xxxxxx agrees to pay for Xxxxx’s reasonable costs and expenses incurred in response to Seller’s and Xxxxxx’s requests, including attorney and consultant fees. Promptly after granting any such interest, Seller shall notify Buyer in writing of the name, address, and telephone and facsimile numbers of any Lender to which Seller’s interest under this Agreement has been assigned. Such notice Any purported assignment in contravention of this Section 12.3 shall include be of no force and effect and null and void ab initio. No assignment will extend the names Term of this Agreement. (d) If Buyer terminates its retail electric service with the Lenders Utility without first transferring Buyer’s Allocated Percentage to whom all written and telephonic communications may an eligible transferee, or otherwise cannot receive Credits for any reason, Buyer will forfeit its right to receive Credits, but will continue to be addressed. After giving Buyer such initial notice, Seller shall promptly give Buyer notice of any change in responsible for the information provided in the initial notice or any revised notice. Rights of Lender If Seller grants an interest Payments under this Agreement as permitted by Section 15.3, the following provisions shall apply: Lender shall have the right, but not the obligation, to perform any act required to be performed by Seller under until this Agreement is terminated pursuant to prevent or cure a Seller Event of Default in accordance with Section 6.1 and such act is timely performed by Lender shall be as effective to prevent or cure a default as if done by Seller. Within thirty (30) Days of the receipt of a written request from Seller or any Lender, Buyer, at Seller’s sole cost and expense, shall execute or arrange for the delivery of certificates, consents, opinions, estoppels, amendments and other documents reasonably requested by Seller or Lender in order to consummate any financing, or refinancing and shall enter into reasonable agreements with such Lender that provide that Buyer recognizes the rights of such Lender upon foreclosure of Lender’s security interest and such other customary provisions as may be reasonably requested by Seller or any such Lender. Buyer agrees that no Lender shall be obligated to perform any obligation or be deemed to incur any liability or obligation provided terms in this Agreement on the part of Seller or shall have any obligation or liability to Buyer with respect to this Agreement except to the extent any Lender has expressly assumed the obligations of Seller hereunder in a written agreement; provided that Buyer shall nevertheless be entitled to exercise all of its rights hereunder in the event that Seller or Lender fails to perform Seller’s obligations under this Agreement. Cure Rights of Lender The cure rights of Lender shall be as agreed in the Consent Agreement. Buyer shall accept a cure performed by any Lender so long as the cure is accomplished within the applicable cure period so agreed to between Buyer and any Lender. Notwithstanding any such action by any Lender, Seller shall not be released and discharged from and shall remain liable for any and all unsatisfied obligations to Buyer arising or accruing hereunder. Control of Seller At all times prior to and following Project COD, the Seller, and the managing member or manager of the Seller, as applicable, shall be a Person that is qualified, financially sound and (i) has at least two (2) years’ experience and capability involving the ownership and/or operation of comparable energy storage facilities of a size equal to or greater than the Project; or (ii) has engaged an operator to operate the Project with at least two (2) years’ experience and capability involving the operation of comparable energy storage facilities of a size equal to or greater than the Project; provided, however, that the Parties may agree to a different standard in a Consent Agreement with any Lender. Sale of Project Other than as set forth in Section 15.9, Seller may not, sell, transfer or assign its interest in the Project to a third party (other than an Affiliate of Seller that assumes all obligations to perform this Agreement and complies with the requirements of Sections 15.1.2 and 15.1.3) or sell, transfer or assign its interest in the Project to any Person succeeding to all or substantially all of the assets of Seller. New York State Finance Law Section 138 Notwithstanding any other provision of this Article 15, the provisions set forth in New York State Finance Law Section 138 shall apply. Buyer’s Purchase of the Project.

Assignment by Xxxxx. 19.5.1 Buyer may not at any time, without the prior written consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed, assign, transfer, sell, pledge or encumber this Agreement or its rights hereunder to any Person; provided, however, that Buyer may, without the consent of Seller (i) transfer, sell, pledge, encumber or assign this Agreement or the account, revenues, or proceeds hereof in connection with any financing or other financial arrangements; (ii) transfer or assign this Agreement to (a) an Affiliate of Buyer, provided, that such Affiliate has creditworthiness at the time of such transfer or assignment that is equal to or higher than that of Buyer as of the time of the transfer or assignment, as evidenced by audited financial statements, or (iii) transfer or assign this Agreement to any Person succeeding to all or substantially all of the assets of Buyer whose creditworthiness, such transfer or assignment, is equal to or higher than that of Buyer as of the time of the transfer or assignment, as evidenced by audited financial statements; provided further, however, that in each such case, any such assignee shall agree in writing to be bound by the terms and conditions hereof and so long as Buyer delivers such tax and enforceability assurance as Seller may reasonably request. . 19.5.2 With respect to any permitted assignment or transfer of this Agreement in compliance with Section 15.2.1 above, the assignee or transferee or successor entity shall assume all of the duties and obligations of Buyer under this Agreement pursuant to an assignment and assumption agreement in which the assignee, transferee or successor entity unconditionally assumes and agrees to be bound by all of the terms and conditions of this Agreement as Buyer and whereby the assignee makes certain additional representations and warranties as appropriate for such assignee that are substantially similar to those contained in Section 12.216.5. Upon any permitted assignment or transfer by Buyer pursuant to Section 15.2.1, Buyer shall be, without further action by Seller, released and discharged from all obligations under this Agreement arising after the effective date of such assignment or transfer. Xxxxx agrees to compensate Seller for Seller’s reasonable costs and expenses incurred by its use of outside attorneys, consultants, accountants and advisors in connection with this Agreement in response to Buyer’s requests made pursuant to Section 15.2 19.5 (including this Section 15.2.2). Seller shall provide an invoice to Buyer for such charges, with appropriate documentation, and Buyer shall pay such invoice within thirty (30) Days. Lender(s) Seller may, subject to Parties’ compliance with requirements of this Section 15.3 which compliance shall constitute Buyer’s written consent, collaterally assign, or grant as security, beneficially or otherwise, its rights under this Agreement to Lenders for collateral security purposes in connection with any financing of the Project, or other financing arrangement; provided, however, that Seller’s obligations under this Agreement shall continue in their entirety in full force and effect as the obligations of a principal and not as a surety, and Seller shall remain fully liable for all of its obligations under or relating to this Agreement. Each such collateral assignment and any assignee, purchaser or transferee shall be subject to Buyer’s rights and defenses hereunder and under Legal Requirements. Seller shall provide prior notice to Buyer of any such collateral assignment. Buyer shall execute such consents, agreements or similar documents with respect to a collateral assignment hereof to Lender(s) as Xxxxxx(s) may reasonably request in connection with the documentation of the financing of the Project(s), including a consent to collateral assignment (“Consent Agreement”) in a form reasonably acceptable to Buyer. Xxxxxx agrees to pay for Xxxxx’s reasonable costs and expenses incurred in response to Seller’s and Xxxxxx’s requests, including attorney and consultant fees. Promptly after granting any such interest, Seller shall notify Buyer in writing of the name, address, and telephone and facsimile numbers of any Lender to which Seller’s interest under this Agreement has been assigned. Such notice shall include the names of the Lenders to whom all written and telephonic communications may be addressed. After giving Buyer such initial notice, Seller shall promptly give Buyer notice of any change in the information provided in the initial notice or any revised notice. Rights of Lender If Seller grants an interest under this Agreement as permitted by Section 15.3, the following provisions shall apply: Lender shall have the right, but not the obligation, to perform any act required to be performed by Seller under this Agreement to prevent or cure a Seller Event of Default in accordance with Section 6.1 and such act is timely performed by Lender shall be as effective to prevent or cure a default as if done by Seller. Within thirty (30) Days of the receipt of a written request from Seller or any Lender, Buyer, at Seller’s sole cost and expense, shall execute or arrange for the delivery of certificates, consents, opinions, estoppels, amendments and other documents reasonably requested by Seller or Lender in order to consummate any financing, or refinancing and shall enter into reasonable agreements with such Lender that provide that Buyer recognizes the rights of such Lender upon foreclosure of Lender’s security interest and such other customary provisions as may be reasonably requested by Seller or any such Lender. Buyer agrees that no Lender shall be obligated to perform any obligation or be deemed to incur any liability or obligation provided in this Agreement on the part of Seller or shall have any obligation or liability to Buyer with respect to this Agreement except to the extent any Lender has expressly assumed the obligations of Seller hereunder in a written agreement; provided that Buyer shall nevertheless be entitled to exercise all of its rights hereunder in the event that Seller or Lender fails to perform Seller’s obligations under this Agreement. Cure Rights of Lender The cure rights of Lender shall be as agreed in the Consent Agreement. Buyer shall accept a cure performed by any Lender so long as the cure is accomplished within the applicable cure period so agreed to between Buyer and any Lender. Notwithstanding any such action by any Lender, Seller shall not be released and discharged from and shall remain liable for any and all unsatisfied obligations to Buyer arising or accruing hereunder. Control of Seller At all times prior to and following Project COD, the Seller, and the managing member or manager of the Seller, as applicable, shall be a Person that is qualified, financially sound and (i) has at least two (2) years’ experience and capability involving the ownership and/or operation of comparable energy storage facilities of a size equal to or greater than the Project; or (ii) has engaged an operator to operate the Project with at least two (2) years’ experience and capability involving the operation of comparable energy storage facilities of a size equal to or greater than the Project; provided, however, that the Parties may agree to a different standard in a Consent Agreement with any Lender. Sale of Project Other than as set forth in Section 15.9, Seller may not, sell, transfer or assign its interest in the Project to a third party (other than an Affiliate of Seller that assumes all obligations to perform this Agreement and complies with the requirements of Sections 15.1.2 and 15.1.3) or sell, transfer or assign its interest in the Project to any Person succeeding to all or substantially all of the assets of Seller. New York State Finance Law Section 138 Notwithstanding any other provision of this Article 15, the provisions set forth in New York State Finance Law Section 138 shall apply. Buyer’s Purchase of the Project.