Liability Following Termination. Upon termination of this Agreement as provided in Section 14.6, the Parties shall have no further liability or obligation to each other as a consequence of such termination, except for any obligation accruing prior to the occurrence of such Force Majeure Event. ASSIGNMENT; LENDERS; CONTROL OF SELLER Assignment by Seller [Prior to Project COD,] Seller may not, without the prior written consent of Buyer, sell, transfer or assign its rights, obligations or interest in this Agreement (“Assignment”) to a third party (other than an Affiliate of Seller) or sell, transfer or assign its rights, obligations or interest in this Agreement to any Person succeeding to all or substantially all of the assets of Seller or effect a change of control of Seller which results in a change of more than fifty (50) percent of the ownership of Seller or a change in the Party or Parties who currently control Seller, either directly or indirectly. [After Project COD] and upon forty-five (45) Days’ advance written notice by Seller to Buyer, Seller may sell, transfer or assign this Agreement to a Person (i) who complies with the requirements of Section 15.1.2, and (ii) who complies with the requirements of Section 15.1.3, upon demonstrating such compliance with (i) and (ii) above to Buyer’s reasonable satisfaction. Subject to Section 15.7, any Assignment by Seller of its obligations hereunder including, without limitation, involving the ownership and/or operation of the Project, other than any Assignment to a Lender in connection with a financing, re-financing or other financial arrangements, shall be to a Person that, (i) is qualified, financially sound and 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 prior to or concurrent with the Assignment an operator to operate the Project that is qualified, financially sound and has such experience and capability. With respect to any permitted Assignment of this Agreement in compliance with this Article 15, including any assignment of this Agreement to any transferee that acquires Seller’s interest in the Project in accordance with Section 15.7, other than an Assignment to a Lender in connection with a financing, or sale or transfer of the Project to a substitute owner in compliance with the terms of the Consent Agreement (as provided in 15.3), the assignee or transferee or successor entity shall assume all of the duties and obligations of Seller 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 Seller, including providing Seller Security as provided for in Article 9, and whereby the assignee makes certain additional representations and warranties as appropriate for such assignee that are substantially similar to those contained in Section 15.1.3 and such assignee delivers such enforceability assurance as Buyer may reasonably request. Following any Assignment in compliance with this Article 15 (including Section 15.1), Seller shall be, without further action by Xxxxx, released and discharged from all obligations under this Agreement arising after the effective date of such Assignment. Xxxxxx agrees to compensate Buyer for Xxxxx’s reasonable costs and expenses incurred by its use of outside attorneys, consultants, accountants and advisors in connection with this Agreement in response to Seller’s requests made pursuant to Section 15.1 (including this Section 15.1.3). Buyer shall provide an invoice to Seller for such charges, with appropriate documentation, and Seller shall pay such invoice within thirty (30) Days.
Appears in 2 contracts
Samples: Operate Transfer Agreement, Operate Transfer Agreement
Liability Following Termination. Upon termination of this Agreement as provided in Section 14.6, the Parties shall have no further liability or obligation to each other as a consequence of such termination, except for any obligation accruing prior to the occurrence of such Force Majeure Event. ASSIGNMENT; LENDERS; CONTROL OF SELLER Assignment by Seller [ Prior to Project COD,] , Seller may not, without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, sell, transfer or assign its rights, obligations or interest in this Agreement (“Assignment”) to a third party (other than an Affiliate of Seller) or sell, transfer or assign its rights, obligations or interest in this Agreement to any Person succeeding to all or substantially all of the assets of Seller or effect a change of control of Seller which results in a change of more than fifty (50) percent of the ownership of Seller or a change in the Party or Parties who currently control Seller, either directly or indirectly. [After Project COD] COD and upon forty-five (45) Days’ advance written notice by Seller to Buyer, Seller may sell, transfer or assign this Agreement to a Person (i) who complies with the requirements of Section 15.1.215.1.2 and the second sentence of Section 15.7, and (ii) who complies with the requirements of Section 15.1.3, upon demonstrating such compliance with (i) and (ii) above to Buyer’s reasonable satisfaction. Subject to Section 15.7, any Assignment by Seller of its obligations hereunder including, including without limitation, limitation involving the ownership and/or operation of the Project, other than any Assignment to a Lender in connection with a financing, re-financing or other financial arrangements, shall be to a Person that, that (i) is qualified, financially sound and has at least two (2) years’ years experience and capability involving the ownership and/or operation of comparable renewable energy storage facilities of a size equal to or greater than the Project; or (ii) has engaged engages prior to or concurrent with the Assignment an operator to operate the Project that is qualified, financially sound and has such experience and capability. With respect to any permitted Assignment of this Agreement in compliance with this Article 15, including any assignment of this Agreement to any transferee that acquires Seller’s interest in the Project in accordance with Section 15.7, other than an Assignment to a Lender in connection with a financing, financing or sale or transfer of the Project to a substitute owner Substitute Owner in compliance with the terms of the Consent Agreement (as provided in 15.316.3), the assignee or transferee or successor entity shall assume all of the duties and obligations of Seller 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 Seller, including providing Seller Security as provided for in Article 9, and whereby the assignee makes certain additional representations and warranties as appropriate for such assignee that are substantially similar to those contained in Section 15.1.3 12.1 and such assignee delivers such enforceability assurance as Buyer may reasonably request. Following any Assignment in compliance with this Article 15 (including Section 15.1), Seller shall be, without further action by Xxxxx, released and discharged from all obligations under this Agreement arising after the effective date of such Assignment. Xxxxxx agrees to compensate Buyer for Xxxxx’s reasonable costs and expenses incurred by its use of outside attorneys, consultants, accountants and advisors in connection with this Agreement in response to Seller’s requests made pursuant to Section 15.1 (including this Section 15.1.3). Buyer shall provide an invoice to Seller for such charges, with appropriate documentation, and Seller shall pay such invoice within thirty (30) Days. 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 an Affiliate of Buyer, or (iii) transfer or assign this Agreement to any Person succeeding to all or substantially all of the assets of Buyer whose creditworthiness at the time of 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) Notwithstanding Section 15.1 and the non-assignment provisions in Supplement 1, Seller may, without the consent of Buyer, 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 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.
Appears in 1 contract
Samples: www.lipower.org
Liability Following Termination. Upon termination of this Agreement as provided in Section 14.6, the Parties shall have no further liability or obligation to each other as a consequence of such termination, except for any obligation accruing prior to the occurrence of such Force Majeure Event. ASSIGNMENT; LENDERS; CONTROL OF SELLER Assignment by Seller [ Prior to Project COD,] , Seller may not, without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, sell, transfer or assign its rights, obligations or interest in this Agreement (“Assignment”) to a third party (other than an Affiliate of Seller) or sell, transfer or assign its rights, obligations or interest in this Agreement to any Person succeeding to all or substantially all of the assets of Seller Seller; provided that Buyer’s consent shall not be required for any such sale, transfer or effect a change of control of Seller which results assignment in a change of more than fifty (50) percent connection with the tax equity lease or inverted lease financing of the ownership Project; and provided further that Seller shall not be in default of Seller its obligations under Section 3.21 if it transfers the Project to a lessor or a change other party involved in the Party tax equity lease or Parties who currently control Seller, either directly or indirectlyinverted lease financing of the Project. [After Project COD] COD and upon forty-five (45) Days’ advance written notice by Seller to Buyer, Seller may sell, transfer or assign this Agreement to a Person (i) who complies with the requirements of Section 15.1.215.1.2 and the second sentence of Section 15.7, and (ii) who complies with the requirements of Section 15.1.3, upon demonstrating such compliance with (i) and (ii) above to Buyer’s reasonable satisfaction. Subject to Section 15.7, any Assignment by Seller of its obligations hereunder including, including without limitation, limitation involving the ownership and/or operation of the Project, other than any Assignment to a Lender in connection with a financing, re-financing or other financial arrangements, shall be to a Person that, (i) that is qualified, financially sound and has at least two (2) years’ experience and capability involving the ownership and/or operation of comparable renewable energy storage facilities of a size equal to or greater than the Project; or (ii) has engaged prior an operator with at least two (2) years’ experience and capability involving the operation of comparable renewable energy facilities of a size equal to or concurrent with greater than the Assignment an operator to operate the Project that is qualified, financially sound and has such experience and capabilityProject. With respect to any permitted Assignment of this Agreement in compliance with this Article 15, including any assignment of this Agreement to any transferee that acquires Seller’s interest in the Project in accordance with Section 15.7, other than an Assignment to a Lender in connection with a financing, financing or sale or transfer of the Project to a substitute owner in compliance with the terms of the Consent Agreement (as provided in 15.316.3), the assignee or transferee or successor entity shall assume all of the duties and obligations of Seller 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 Seller, including providing Seller Security as provided for in Article 9, and whereby the assignee makes certain additional representations and warranties as appropriate for such assignee that are substantially similar to those contained in Section 15.1.3 12.1 and such assignee delivers such enforceability assurance as Buyer may reasonably request. Following any Assignment in compliance with this Article 15 (including Section 15.1), Seller shall be, without further action by Xxxxx, released and discharged from all obligations under this Agreement arising after the effective date of such Assignment. Xxxxxx agrees to compensate Buyer for Xxxxx’s reasonable costs and expenses incurred by its use of outside attorneys, consultants, accountants and advisors in connection with this Agreement in response to Seller’s requests made pursuant to Section 15.1 (including this Section 15.1.3). Buyer shall provide an invoice to Seller for such charges, with appropriate documentation, and Seller shall pay such invoice within thirty (30) Days. 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 an Affiliate of Buyer, provided that such Affiliate has creditworthiness at the time of 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, or (iii) transfer or assign this Agreement to any Person succeeding to all or substantially all of the assets of Buyer whose creditworthiness at the time of 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) Notwithstanding Section 15.1 and the non-assignment provisions in Supplement 1, Seller may, without the consent of Buyer, 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.
Appears in 1 contract
Samples: www.psegliny.com
Liability Following Termination. Upon termination of this Agreement as provided in Section 14.6, the Parties shall have no further liability or obligation to each other as a consequence of such termination, except for any obligation accruing prior to the occurrence of such Force Majeure Event. ASSIGNMENT; LENDERS; CONTROL OF SELLER Assignment by Seller [Prior to Project COD,] , Seller may not, without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, sell, transfer or assign its rights, obligations or interest in this Agreement (“Assignment”) to a third party (other than an Affiliate of Seller) or sell, transfer or assign its rights, obligations or interest in this Agreement to any Person succeeding to all or substantially all of the assets of Seller or effect a change of control of Seller which results in a change of more than fifty (50) percent of the ownership of Seller or a change in the Party or Parties who currently control Seller, either directly or indirectly. [After Project COD] COD and upon forty-five (45) Days’ advance written notice by Seller to Buyer, Seller may sell, transfer or assign this Agreement to a Person (i) who complies with the requirements of Section 15.1.215.1.2 and the second sentence of Section 15.7, and (ii) who complies with the requirements of Section 15.1.3, upon demonstrating such compliance with (i) and (ii) above to Buyer’s reasonable satisfaction. Subject to Section 15.7, any Assignment by Seller of its obligations hereunder including, including without limitation, limitation involving the ownership and/or operation of the Project, other than any Assignment to a Lender in connection with a financing, re-financing or other financial arrangements, shall be to a Person that, that (i) is qualified, financially sound and has at least two (2) years’ years experience and capability involving the ownership and/or operation of comparable renewable energy storage facilities of a size equal to or greater than the Project; or (ii) has engaged engages prior to or concurrent with the Assignment an operator to operate the Project that is qualified, financially sound and has such experience and capability. With respect to any permitted Assignment of this Agreement in compliance with this Article 15, including any assignment of this Agreement to any transferee that acquires Seller’s interest in the Project in accordance with Section 15.7, other than an Assignment to a Lender in connection with a financing, financing or sale or transfer of the Project to a substitute owner Substitute Owner in compliance with the terms of the Consent Agreement (as provided in 15.316.3), the assignee or transferee or successor entity shall assume all of the duties and obligations of Seller 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 Seller, including providing Seller Security as provided for in Article 9, and whereby the assignee makes certain additional representations and warranties as appropriate for such assignee that are substantially similar to those contained in Section 15.1.3 12.1 and such assignee delivers such enforceability assurance as Buyer may reasonably request. Following any Assignment in compliance with this Article 15 (including Section 15.1), Seller shall be, without further action by Xxxxx, released and discharged from all obligations under this Agreement arising after the effective date of such Assignment. Xxxxxx agrees to compensate Buyer for Xxxxx’s reasonable costs and expenses incurred by its use of outside attorneys, consultants, accountants and advisors in connection with this Agreement in response to Seller’s requests made pursuant to Section 15.1 (including this Section 15.1.3). Buyer shall provide an invoice to Seller for such charges, with appropriate documentation, and Seller shall pay such invoice within thirty (30) Days.
Appears in 1 contract
Samples: Power Purchase Agreement
