Common use of Assignment by Xxxxxx Clause in Contracts

Assignment by Xxxxxx. (a) Lessee acknowledges that Xxxxxx has relied both on the business experience and creditworthiness of Lessee and upon the particular purposes for which Lessee intends to use the Properties in entering into this Lease. Lessee shall not assign, transfer, convey, pledge or mortgage this Lease or any interest herein or any interest in Lessee that would result in a Change in Control of Lessee, whether by operation of Law or otherwise, without the prior written consent of Xxxxxx. At the time of any assignment of this Lease which is approved by Xxxxxx, the assignee shall assume all of the obligations of Lessee under this Lease pursuant to a written assumption agreement in form and substance reasonably acceptable to Lessor. Such assignment of this Lease pursuant to this Section 14.02 shall not relieve Lessee of its obligations respecting this Lease unless otherwise agreed to by Xxxxxx. Any assignment, transfer, conveyance, pledge or mortgage in violation of this Section 14.02 shall be voidable at the sole option of Lessor. Any consent to an assignment given by Lessor hereunder shall not be deemed a consent to any subsequent assignment. (b) Notwithstanding anything to the contrary contained in Section 14.02(a) and provided that no Event of Default has occurred and is continuing, and no condition shall exist which upon the giving of notice or the passage of time, or both, would constitute an Event of Default, at the time of the proposed assignment or other transfer, and provided further that any assignee agrees to assume all of Lessee’s obligations under this Lease by written agreement approved by Lessor, Lessee shall have the right to assign or otherwise transfer all, but not less than all, of its interest in, to and under this Lease without Xxxxxx’s consent to (i) an Affiliate of Lessee, or (ii) a Qualified Operator. A “Qualified Operator” shall mean a Person who: (x) for two (2) consecutive years immediately prior to the date of assignment or transfer and (y) on a proforma basis following the consummation of such assignment or transfer (all as determined by Lessor upon review of financial statements provided by the assignee prior to the proposed lease assignment and in a form reasonably satisfactory to Lessor), (A) has a CFCCR (defined in Section 4.08 above) of at least 3.0x; (B) generates EBITDA (defined in Section 4.08 above) of at least $65,000,000; and (C) has a Funded Debt (defined in Section 4.08 above) to EBITDA (defined in Section 4.08 above) ratio that does not exceed 6.0x; provided, however, that Lessee may satisfy the foregoing conditions of a Qualified Operator by providing, or causing to be provided, a lease guaranty agreement, in form and substance reasonably acceptable to and approved by Lessor, in writing, which guaranty shall be from an entity that when combined with the proposed assignee meets the requirements of (A), (B) and (C) set forth in this Section 14.02(b). Lessee shall provide Lessor with at least fifteen (15) Business Days’ prior written notice of the proposed assignment to a Qualified Operator, which notice must include financial information satisfying the Qualified Operator requirements set forth herein. In the event that Lessee effects an assignment to a Qualified Operator, Lessee shall be released from any liability arising under this Lease from and after the date of such assignment and Guarantor shall be released from any liability arising under the Guaranty from and after the date of such assignment.

Assignment by Xxxxxx. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that: (a) Lessee acknowledges that Xxxxxx if an Event of Default has relied both on occurred and is continuing or in the business experience case of an assignment of the entire remaining amount of the assigning Xxxxxx’s Commitment and creditworthiness of Lessee and upon the particular purposes for which Lessee intends to use the Properties in entering into this Lease. Lessee shall not assign, transfer, convey, pledge or mortgage this Lease or any interest herein or any interest in Lessee that would result in a Change in Control of Lessee, whether by operation of Law or otherwise, without the prior written consent of Xxxxxx. At Loans at the time owing to it or in the case of any an assignment to a Lender or an Affiliate of this Lease which is approved by Xxxxxxa Lender or an Approved Fund with respect to a Lender, the assignee shall assume all aggregate amount of the obligations Commitment being assigned (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of Lessee under this Lease pursuant the Loan of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) will not be less than $5,000,000 and, in the case of a written assumption agreement in form and substance reasonably acceptable to Lessor. Such assignment of this Lease pursuant to this Section 14.02 shall not relieve Lessee of its obligations respecting this Lease unless otherwise agreed to by Xxxxxx. Any partial assignment, transfer, conveyance, pledge or mortgage in violation of this Section 14.02 shall be voidable at the sole option of Lessor. Any consent to an assigning Xxxxxx’s Commitment hereunder following such partial assignment given by Lessor hereunder shall will not be deemed a consent to any subsequent assignment. (b) Notwithstanding anything to less than $5,000,000, in each case unless each of the contrary contained in Section 14.02(a) and provided that Agent and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers otherwise consent to a lower amount (each such consent not to be unseasonably withheld or delayed) (b) each partial assignment will be made as an assignment of a proportionate part of all the assigning Xxxxxx’s rights and no condition shall exist which upon the giving of notice or the passage of time, or both, would constitute an Event of Default, at the time of the proposed assignment or other transfer, and provided further that any assignee agrees to assume all of Lessee’s obligations under this Lease by written agreement Agreement with respect to the Loan or the Commitment assigned; except that this Section 18.02(b) will not - 108 - prohibit any Lender from assigning all or a portion of its rights and obligations among separate credits on a non pro rata basis; (c) any assignment must be approved by Lessorthe Agent (such approval not to be unreasonably withheld or delayed) unless the proposed assignee is itself already a Lender with the same type of Commitment; (d) any assignment must be approved by the Borrowers (such approval not to be unreasonably withheld or delayed) unless the proposed assignee is itself already a Lender with the same type of Commitment or a Default or Event of Default has occurred and is continuing; and (e) the parties to each assignment will execute and deliver to the Agent an Assignment and Assumption; together with a processing and recordation fee in an amount of $5,000; (f) where requested by the Agent, Lessee shall have the right Eligible Assignee, if it is not a Lender, will deliver to assign or otherwise transfer all, but not less than all, of its interest in, to and under this Lease without Xxxxxx’s consent the Agent an administrative questionnaire in a form supplied by the Agent; (g) no such assignment will be made to (i) an Affiliate any Borrower or any of Lesseethe Borrower’s Affiliates or Subsidiaries, or (ii) a Qualified Operator. A “Qualified Operator” shall mean a to any Defaulting Lender or any of its Subsidiaries, or any Person who: , upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (ii); (h) no such assignment will be made to a natural Person; and (i) in connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment will be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment will make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrowers and the Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) for two (2) consecutive years immediately prior pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the date of assignment or transfer Agent and each Lender hereunder (and interest accrued thereon), and (y) on a proforma basis following acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Proportionate Share. Notwithstanding the consummation of such assignment or transfer (all as determined by Lessor upon review of financial statements provided by the assignee prior to the proposed lease assignment and in a form reasonably satisfactory to Lessor), (A) has a CFCCR (defined in Section 4.08 above) of at least 3.0x; (B) generates EBITDA (defined in Section 4.08 above) of at least $65,000,000; and (C) has a Funded Debt (defined in Section 4.08 above) to EBITDA (defined in Section 4.08 above) ratio that does not exceed 6.0x; provided, however, that Lessee may satisfy the foregoing conditions of a Qualified Operator by providing, or causing to be provided, a lease guaranty agreementforegoing, in form and substance reasonably acceptable to and approved by Lessor, in writing, which guaranty shall be from an entity that when combined with the proposed assignee meets the requirements of (A), (B) and (C) set forth in this Section 14.02(b). Lessee shall provide Lessor with at least fifteen (15) Business Days’ prior written notice of the proposed assignment to a Qualified Operator, which notice must include financial information satisfying the Qualified Operator requirements set forth herein. In the event that Lessee effects an any assignment of rights and obligations of any Defaulting Lender hereunder will become effective under Applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest will be deemed to be a Qualified OperatorDefaulting Lender for all purposes of this Agreement until such compliance occurs. Subject to acceptance and recording thereof by the Agent pursuant to Section 18.03, Lessee shall be released from any liability arising under this Lease from and after the effective date specified in each Assignment and Assumption, the Eligible - 109 - Assignee thereunder will be a party to this Agreement and, to the extent of the interest assigned by such assignment Assignment and Guarantor shall Assumption, have the rights and obligations of a Lender under this Agreement and the other Loan Documents, including any collateral security, and the assigning Lender thereunder will, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender will cease to be a party hereto) but will continue to be entitled to the benefits of Article 3 and Article 10, and will continue to be liable for any liability arising under breach of this Agreement by such Lender, with respect to facts and circumstances occurring prior to the Guaranty from and after the effective date of such assignment, provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph will be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 18.04. Any payment by an assignee to an assigning Lender in connection with an assignment or transfer will not be or be deemed to be a repayment by the Borrowers or a new Loan to the Borrowers.

Assignment by Xxxxxx. (ai) Notwithstanding anything to the contrary herein, Lessee acknowledges may assign all or a portion of its rights and obligations hereunder to (A) to one or more Affiliates of Lessee, (B) to any person succeeding to all or substantially all of the assets of Lessee, (C) to an entity that acquires one or more Facilities or, prior to the construction of the Facilities, the development rights thereto, so long as the assignee has demonstrable experience in operating and maintaining solar photovoltaic systems comparable to the Facilities; and has demonstrable financial capability to maintain the Facilities. In the event of any such assignment, Xxxxxx has relied both on shall provide advance written notice to Lessor of the business experience existence of such assignment, together with the name and creditworthiness address of Lessee the assignee, and upon documentation establishing that the particular purposes for which Lessee intends to use assignee as of the Properties in entering into closing of such transaction will assume all or a portion of the Lessee’s rights and obligations under this Lease. Xxxxxx agrees to promptly execute any document reasonably requested in acknowledgement of such assignment and in consent thereto in accordance with the provisions hereof. If such assignment is a full assignment of all of Xxxxxx’s rights, and obligations under this Lease, then Lessee shall not assign, transfer, convey, pledge or mortgage have no further liability arising under this Lease or after the effective date of the assignment. (ii) Lessor shall deliver notice to Lessee not less than thirty (30) days in advance of any interest herein or any interest in Lessee that would result in a Change in Control proposed transfer of Lesseethe Properties, whether by operation of Law or otherwise, without which such transfer shall be subject to the prior written consent of Xxxxxx, in its sole discretion. At Lessor agrees that this Lease shall survive any transfer of the time Properties; provided, however that Lessor shall remain primarily liable for all obligations of Lessor hereunder until Xxxxxx has approved the creditworthiness of Xxxxxx’s assignee. In furtherance of the foregoing, Xxxxxx agrees that it shall cause any purchaser, assignee, or mortgagee of the Properties to execute and deliver to Lessee an assignment and assumption of this Lease which is approved by Xxxxxx, and the assignee shall assume all PPA simultaneously with the transfer of the obligations Properties to such purchaser, assignee or mortgagee, and that Lessor shall reimburse Lessee for all costs and expenses associated with review and negotiation of Lessee under this Lease pursuant to a written assumption agreement in form and substance reasonably acceptable to Lessorsuch agreements, including reasonable attorneys’ fees. Such assignment of this Lease pursuant to this Section 14.02 and assumption agreements shall contain an acknowledgement by the purchaser, assignee or mortgagee that it has no interest in the Facilities and shall not relieve Lessee gain any interest in the Facilities by virtue of its obligations respecting this Lease unless otherwise agreed to by Xxxxxx. Any assignment, the transfer, conveyance, pledge or mortgage in violation other than the rights of this Section 14.02 shall be voidable at the sole option of Lessor. Any consent to an assignment given by Lessor hereunder shall not be deemed a consent to any subsequent assignmenthereunder. (b) Notwithstanding anything to the contrary contained in Section 14.02(a) and provided that no Event of Default has occurred and is continuing, and no condition shall exist which upon the giving of notice or the passage of time, or both, would constitute an Event of Default, at the time of the proposed assignment or other transfer, and provided further that any assignee agrees to assume all of Lessee’s obligations under this Lease by written agreement approved by Lessor, Lessee shall have the right to assign or otherwise transfer all, but not less than all, of its interest in, to and under this Lease without Xxxxxx’s consent to (i) an Affiliate of Lessee, or (ii) a Qualified Operator. A “Qualified Operator” shall mean a Person who: (x) for two (2) consecutive years immediately prior to the date of assignment or transfer and (y) on a proforma basis following the consummation of such assignment or transfer (all as determined by Lessor upon review of financial statements provided by the assignee prior to the proposed lease assignment and in a form reasonably satisfactory to Lessor), (A) has a CFCCR (defined in Section 4.08 above) of at least 3.0x; (B) generates EBITDA (defined in Section 4.08 above) of at least $65,000,000; and (C) has a Funded Debt (defined in Section 4.08 above) to EBITDA (defined in Section 4.08 above) ratio that does not exceed 6.0x; provided, however, that Lessee may satisfy the foregoing conditions of a Qualified Operator by providing, or causing to be provided, a lease guaranty agreement, in form and substance reasonably acceptable to and approved by Lessor, in writing, which guaranty shall be from an entity that when combined with the proposed assignee meets the requirements of (A), (B) and (C) set forth in this Section 14.02(b). Lessee shall provide Lessor with at least fifteen (15) Business Days’ prior written notice of the proposed assignment to a Qualified Operator, which notice must include financial information satisfying the Qualified Operator requirements set forth herein. In the event that Lessee effects an assignment to a Qualified Operator, Lessee shall be released from any liability arising under this Lease from and after the date of such assignment and Guarantor shall be released from any liability arising under the Guaranty from and after the date of such assignment.

Assignment by Xxxxxx. The Lender may assign to any Eligible Assignee all or a portion of its rights and obligations under this Agreement (a) Lessee acknowledges that Xxxxxx has relied both on the business experience and creditworthiness of Lessee and upon the particular purposes for which Lessee intends to use the Properties in entering into this Lease. Lessee shall not assign, transfer, convey, pledge or mortgage this Lease or any interest herein or any interest in Lessee that would result in a Change in Control of Lessee, whether by operation of Law or otherwiseincluding, without limitation, all or a portion of its Commitment and any Loan or interests therein owned by it); provided, however that (i) except for an assignment by the Lender to an Affiliate of the Lender, each such assignment shall require the prior written consent of Xxxxxx. At the time of any assignment of this Lease which is approved by XxxxxxBorrower (such consent not to be unreasonably withheld, the assignee shall assume all of the obligations of Lessee under this Lease pursuant to a written assumption agreement in form and substance reasonably acceptable to Lessor. Such assignment of this Lease pursuant to this Section 14.02 shall not relieve Lessee of its obligations respecting this Lease unless otherwise agreed to by Xxxxxx. Any assignmentconditioned or delayed; provided, transferhowever, conveyance, pledge or mortgage in violation of this Section 14.02 shall be voidable at the sole option of Lessor. Any that such consent to an assignment given by Lessor hereunder shall not be deemed a consent to any subsequent assignment. (b) Notwithstanding anything to the contrary contained in Section 14.02(a) and provided that no required if an Event of Default or an Unmatured Event of Default has occurred and is continuing); (ii) each such assignment shall be of a constant, and no condition shall exist which upon the giving not a varying, percentage of notice or the passage of time, or both, would constitute an Event of Default, at the time of the proposed assignment or other transfer, all rights and provided further that any assignee agrees to assume all of Lessee’s obligations under this Lease by written agreement approved by Lessor, Lessee Agreement; (iii) the amount being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance Agreement with respect to such assignment) shall have the right to assign or otherwise transfer all, but not in no event be less than all, the lesser of its interest in, to and under this Lease without Xxxxxx’s consent to (i) an Affiliate of Lessee, or (ii) a Qualified Operator. A “Qualified Operator” shall mean a Person who: (x) for two five million dollars (2$5,000,000) consecutive years immediately prior to the date of assignment or transfer and (y) on a proforma basis following all of the consummation of assigning Xxxxxx’s Commitment; and (iv) the parties to each such assignment or transfer (all as determined by Lessor upon review of financial statements provided by the assignee prior shall execute and deliver to the proposed lease assignment Administrative Agent, for its acceptance and recording in a form reasonably satisfactory to Lessor)the Register, (A) has a CFCCR (defined in Section 4.08 above) of at least 3.0x; (B) generates EBITDA (defined in Section 4.08 above) of at least $65,000,000; an Assignment and (C) has a Funded Debt (defined in Section 4.08 above) to EBITDA (defined in Section 4.08 above) ratio that does not exceed 6.0x; providedAcceptance Agreement. Upon such execution, howeverdelivery, that Lessee may satisfy the foregoing conditions of a Qualified Operator by providing, or causing to be provided, a lease guaranty agreement, in form acceptance and substance reasonably acceptable to and approved by Lessor, in writing, which guaranty shall be from an entity that when combined with the proposed assignee meets the requirements of (A), (B) and (C) set forth in this Section 14.02(b). Lessee shall provide Lessor with at least fifteen (15) Business Days’ prior written notice of the proposed assignment to a Qualified Operator, which notice must include financial information satisfying the Qualified Operator requirements set forth herein. In the event that Lessee effects an assignment to a Qualified Operator, Lessee shall be released from any liability arising under this Lease recording from and after the effective date specified in such Assignment and Acceptance Agreement, (x) the assignee thereunder shall be a party to this Agreement, and to the extent that rights and obligations under this Agreement have been assigned to it pursuant to such Assignment and Acceptance Agreement, have the rights and obligations of the Lender hereunder and (y) the assigning Lender shall, to the extent that rights and obligations have been assigned by it pursuant to such assignment Assignment and Guarantor shall Acceptance Agreement, relinquish such rights and be released from any liability arising such obligations under this Agreement (and, in the Guaranty from case of an Assignment and after Acceptance Agreement covering all or the date remaining portion of the assigning Lender’s rights and obligations under this Agreement, such assignmentLender shall cease to be a party hereto).