Common use of Resource Provider’s Right to Assign Clause in Contracts

Resource Provider’s Right to Assign. Notwithstanding the provisions of Section 19.1 (Restriction on Assignment), Resource Provider shall have the right to assign, pledge or encumber this Agreement in its entirety or in part without PREPA’s consent to the Project Lenders as collateral security in order to obtain financing or other funding. PREPA agrees to execute and deliver an agreement consenting to any assignment as collateral security in favor of the Project Lenders containing terms and conditions that are customary for transactions of this kind. PREPA agrees to cooperate in good faith in this regard and to provide other customary and reasonable documents and acknowledgments as the Project Lenders may reasonably request in connection with the financing of the Facility, including estoppel certificates and direct agreement or consent to an assignment in accordance with this Section 19.3 and substantially in the form of Appendix X (Form of Direct Agreement) and a legal opinion addressed to the Project Lenders with respect to due authorization and capacity of PREPA to enter into such agreement or consent, and enforceability thereof, in each case as reasonably acceptable to PREPA, provided that Resource Provider shall reimburse PREPA for the cost of negotiating and providing such documents, acknowledgments, opinions, certificates, consents, and agreements. In addition, Resource Provider shall have the right to assign this Agreement as collateral security to any agent, trustee, or other Person (including any corporation or partnership) representing the Project Lenders under the financing documents. If Resource Provider shall assign this Agreement as collateral security pursuant to this Section 19.3, then so long as the secured obligations, or any consolidation, modification, or extension of such obligation shall remain outstanding, the following provisions shall apply: a. The making of an assignment pursuant to the preceding provisions of this Section 19.3 shall not be deemed to constitute an assignment or transfer of this Agreement, nor shall any assignee referred to above, as such, be deemed to be an assignee or transferee of this Agreement so as to require such assignee, as such, to assume the performance of any of the terms and conditions of Resource Provider to be performed hereunder; provided that the purchaser at any sale of this Agreement in any proceeding for the foreclosure of any assignment, or the assignee or transferee of this Agreement in any proceedings for the foreclosure of any assignment, or the assignee or transferee of this Agreement under any instrument of assignment or transfer in lieu of the foreclosure of any assignment, shall be deemed to be an assignee or transferee within the meaning of this paragraph (a) of this Section 19.3 and shall be deemed to have agreed to perform all of the terms, covenants and conditions on the part of Resource Provider to be performed hereunder from and after the date of such purchase and assignment. b. Notwithstanding any other provision of this Agreement, any sale of Resource Provider’s rights in this Agreement in any secured creditor’s sale, any proceeding for the foreclosure of any assignment, or the assignment or transfer of this Agreement in lieu of the foreclosure of any assignment, shall be deemed to be a permitted sale, transfer or assignment of this Agreement, and this Agreement shall continue in full force and effect following any such sale, transfer or assignment. c. If PREPA terminates this Agreement prior to the expiration of the Term due to a Default by Resource Provider or rejects or disaffirms this Agreement pursuant to any bankruptcy Law or proceeding or other similar Applicable Law or proceedings affecting creditors’ rights generally with respect to a bankruptcy proceeding relating to Resource Provider or otherwise, PREPA agrees, if outstanding obligations to a Project Lender exist, and subject to the receipt of all necessary approvals, to enter into a new power purchase and operating agreement with the Project Lender (or its designee or nominee) on substantially similar terms to this Agreement; provided that such designee or nominee (x) is Controlled by the Project Lender, (y) is approved by PREPA (which approval PREPA shall not unreasonably withhold or delay) and has provided to PREPA (i) its audited financial statements as per GAAP, demonstrating that such new designee or nominee has a tangible net worth of at least twenty-five million dollars ($25,000,000) (or its direct or indirect parent has a tangible net worth of at least seventy-five million dollars ($75,000,000))13, (ii) evidence reasonably acceptable to PREPA that such new designee or nominee is or has engaged a Qualified Operator, and (iii) the certifications and documentation required by Appendix B (PREPA Signing Conditions), but construing references to Resource Provider therein as references to such new designee or nominee, and (z) has accepted all terms, provisions and limitations of this Agreement, effective as of the date of such termination. Resource Provider shall not have the right to assign its rights, title, or interest under this Agreement to any Affiliate of Resource Provider without the prior express written consent of PREPA, unless (i) such Affiliate agrees to be bound by the terms of this Agreement and to fully perform the obligations of Resource Provider hereunder (including Appendix B (PREPA Signing Conditions)), 13 Note: These amounts align with FOMB requirements on prior transactions. (ii) the Sponsor maintains at least the same percentage of the total Equity ownership interest in such Affiliate, whether directly or indirectly, as it owns, directly or indirectly, in Resource Provider at the time of such assignment, and (iii) Resource Provider or Sponsor owns no less than fifty-one percent (51%) of the total Equity. Resource Provider shall notify PREPA of Resource Provider’s intention to assign this Agreement at least thirty (30) Days in advance of any such assignment.

Resource Provider’s Right to Assign. Notwithstanding the provisions of Section 19.1 (Restriction on Assignment), Resource Provider shall have the right to assign, pledge or encumber this Agreement in its entirety or in part without PREPA’s consent to the Project Lenders as collateral security in order to obtain financing or other funding. PREPA XXXXX agrees to execute and deliver an agreement consenting to any assignment as collateral security in favor of the Project Lenders containing terms and conditions that are customary for transactions of this kind. PREPA agrees to cooperate in good faith in this regard and to provide other customary and reasonable documents and acknowledgments as the Project Lenders may reasonably request in connection with the financing of the Facility, including estoppel certificates and direct agreement or consent to an assignment in accordance with this Section 19.3 and substantially in the form of Appendix X W (Form of Direct Agreement) and a legal opinion addressed to the Project Lenders with respect to due authorization and capacity of PREPA to enter into such agreement or consent, and enforceability thereof, in each case as reasonably acceptable to PREPA, provided that Resource Provider shall reimburse PREPA for the cost of negotiating and providing such documents, acknowledgments, opinions, certificates, consents, and agreements. In addition, Resource Provider shall have the right to assign this Agreement as collateral security to any agent, trustee, or other Person (including any corporation or partnership) representing the Project Lenders under the financing documents. If Resource Provider shall assign this Agreement as collateral security pursuant to this Section 19.3, then so long as the secured obligations, or any consolidation, modification, or extension of such obligation shall remain outstanding, the following provisions shall apply: a. The making of an assignment pursuant to the preceding provisions of this Section 19.3 shall not be deemed to constitute an assignment or transfer of this Agreement, nor shall any assignee referred to above, as such, be deemed to be an assignee or transferee of this Agreement so as to require such assignee, as such, to assume the performance of any of the terms and conditions of Resource Provider to be performed hereunder; provided that the purchaser at any sale of this Agreement in any proceeding for the foreclosure of any assignment, or the assignee or transferee of this Agreement in any proceedings for the foreclosure of any assignment, or the assignee or transferee of this Agreement under any instrument of assignment or transfer in lieu of the foreclosure of any assignment, shall be deemed to be an assignee or transferee within the meaning of this paragraph (a) of this Section 19.3 and shall be deemed to have agreed to perform all of the terms, covenants and conditions on the part of Resource Provider to be performed hereunder from and after the date of such purchase and assignment. b. Notwithstanding any other provision of this Agreement, any sale of Resource Provider’s rights in this Agreement in any secured creditor’s sale, any proceeding for the foreclosure of any assignment, or the assignment or transfer of this Agreement in lieu of the foreclosure of any assignment, shall be deemed to be a permitted sale, transfer or assignment of this Agreement, and this Agreement shall continue in full force and effect following any such sale, transfer or assignment. c. If PREPA terminates this Agreement prior to the expiration of the Term due to a Default by Resource Provider or rejects or disaffirms this Agreement pursuant to any bankruptcy Law or proceeding or other similar Applicable Law or proceedings affecting creditors’ rights generally with respect to a bankruptcy proceeding relating to Resource Provider or otherwise, PREPA agrees, if outstanding obligations to a Project Lender exist, and subject to the receipt of all necessary approvals, to enter into a new power purchase and operating energy storage services agreement with the Project Lender (or its designee or nominee) on substantially similar terms to this Agreement; provided that such designee or nominee (x) is Controlled by the Project Lender, (y) is approved by PREPA (which approval PREPA shall not unreasonably withhold or delay) and has provided to PREPA (i) its audited financial statements as per GAAP, demonstrating that such new designee or nominee has a tangible net worth of at least twenty-five million dollars ($25,000,000) (or its direct or indirect parent has a tangible net worth of at least seventy-five million dollars ($75,000,000))1375,000,000))12, (ii) evidence reasonably acceptable to PREPA that such new designee or nominee is or has engaged a Qualified Operator, and (iii) the certifications and documentation required by Appendix B (PREPA Signing Conditions), but construing references to Resource Provider therein as references to such new designee or nominee, and (z) has accepted all terms, provisions and limitations of this Agreement, effective as of the date of such termination. Resource Provider shall not have the right to assign its rights, title, or interest under this Agreement to any Affiliate of Resource Provider without the prior express written consent of PREPA, unless (i) such Affiliate agrees to be bound by the terms of this Agreement and to fully perform the obligations of Resource Provider hereunder (including Appendix B (PREPA Signing Conditions)), 13 Note: These amounts align with FOMB requirements on prior transactions., (ii) the Sponsor maintains at least the same percentage of the total Equity ownership interest in such Affiliate, whether directly or indirectly, as it owns, directly or indirectly, in Resource Provider at the time of such assignment, and (iii) Resource Provider or the Sponsor owns no less than fifty-fifty one percent (51%) of the total Equity. Resource Provider shall notify PREPA of Resource Provider’s intention to assign this Agreement at least thirty (30) Days in advance of any such assignment.

Resource Provider’s Right to Assign. Notwithstanding the provisions of Section 19.1 (Restriction on Assignment), Resource Provider shall have the right to assign, pledge or encumber this Agreement in its entirety or in part without PREPA’s consent to the Project Lenders as collateral security in order to obtain financing or other funding. PREPA XXXXX agrees to execute and deliver an agreement consenting to any assignment as collateral security in favor of the Project Lenders containing terms and conditions that are customary for transactions of this kind. PREPA agrees to cooperate in good faith in this regard and to provide other customary and reasonable documents and acknowledgments as the Project Lenders may reasonably request in connection with the financing of the Facilityin connection with this Agreement, including estoppel certificates and direct agreement or consent to an assignment in accordance with this Section 19.3 and substantially in the form of Appendix X W (Form of Direct Agreement) (or such other customary form reasonably acceptable to PREPA and the Project Lenders) and a legal opinion addressed to the Project Lenders with respect to due authorization and capacity of PREPA to enter into such agreement or consent, and enforceability thereof, and any other matter reasonably requested by the Project Lenders, in each case as reasonably acceptable to PREPA, provided that Resource Provider shall reimburse PREPA for the cost of negotiating and providing such documents, acknowledgments, opinions, certificates, consents, and agreements. In addition, Resource Provider shall have the right to assign this Agreement as collateral security to any agent, trustee, or other Person (including any corporation or partnership) representing the Project Lenders under the financing documents. If Resource Provider shall assign this Agreement as collateral security pursuant to this Section 19.3, then so long as the secured obligations, or any consolidation, modification, or extension of such obligation shall remain outstanding, the following provisions shall apply: a. The making of an assignment pursuant to the preceding provisions of this Section 19.3 shall not be deemed to constitute an assignment or transfer of this Agreement, nor shall any assignee referred to above, as such, be deemed to be an assignee or transferee of this Agreement so as to require such assignee, as such, to assume the performance of any of the terms and conditions of Resource Provider to be performed hereunder; provided that the purchaser at any sale of this Agreement in any proceeding for the foreclosure of any assignment, or the assignee or transferee of this Agreement in any proceedings for the foreclosure of any assignment, or the assignee or transferee of this Agreement under any instrument of assignment or transfer in lieu of the foreclosure of any assignment, shall be deemed to be an assignee or transferee within the meaning of this paragraph (a) of this Section 19.3 and shall be deemed to have agreed to perform all of the terms, covenants and conditions on the part of Resource Provider to be performed hereunder from and after the date of such purchase and assignment. b. Notwithstanding any other provision of this Agreement, any sale of Resource Provider’s rights in this Agreement in any secured creditor’s sale, any proceeding for the foreclosure of any assignment, or the assignment or transfer of this Agreement in lieu of the foreclosure of any assignment, shall be deemed to be a permitted sale, transfer or assignment of this Agreement, and this Agreement shall continue in full force and effect following any such sale, transfer or assignment. c. If PREPA terminates this Agreement prior to the expiration of the Term due to a Default by Resource Provider or rejects or disaffirms this Agreement pursuant to any bankruptcy Law or proceeding or other similar Applicable Law or proceedings affecting creditors’ rights generally with respect to a bankruptcy proceeding relating to Resource Provider or otherwise, PREPA agrees, if outstanding obligations to a Project Lender exist, and subject to the receipt of all necessary approvals, to enter into a new power purchase and operating grid services agreement with the Project Lender (or its designee or nominee) on substantially similar terms to this Agreement; provided that such designee or nominee (xi) is Controlled by the Project Lender, (y) is approved by PREPA (which approval PREPA shall not unreasonably withhold or delay) and has provided to PREPA (iA) its audited financial statements as per GAAP, demonstrating that such new designee or nominee has a tangible net worth of at least twenty-five million dollars ($25,000,000) (or its direct or indirect parent has a tangible net worth of at least seventy-five million dollars ($75,000,000))13, (ii) evidence reasonably acceptable to PREPA that such new designee or nominee is or has engaged a Qualified Operator75,000,000))24, and (iiiB) the certifications and documentation required by Appendix B (PREPA Signing Conditions), but construing references to Resource Provider therein as references to such new designee or nominee, and (zii) has accepted all terms, provisions and limitations of this Agreement, effective as of the date of such termination. Resource Provider shall not have the right to assign its rights, title, or interest under this Agreement to any Affiliate of Resource Provider without the prior express written consent of PREPA, unless (i) such Affiliate agrees to be bound by the terms of this Agreement and to fully perform the obligations of Resource Provider hereunder (including Appendix B (PREPA Signing Conditions)), 13 Note: These amounts align with FOMB requirements on prior transactions., (ii) the Sponsor maintains at least the same percentage of the total Equity ownership interest in such Affiliate, whether directly or indirectly, as it owns, directly or indirectly, owns in Resource Provider at the time of such assignment, and (iii) Resource Provider or the Sponsor owns no less than fifty-one percent (51%) of the total EquityEquity ownership interest in such Affiliate. Resource Provider shall notify PREPA of Resource Provider’s intention to assign this Agreement at least thirty (30) Days in advance of any such assignment.

Resource Provider’s Right to Assign. Notwithstanding the provisions of Section 19.1 (Restriction on Assignment), Resource Provider shall have the right to assign, pledge or encumber this Agreement in its entirety or in part without PREPA’s consent to the Project Lenders as collateral security in order to obtain financing or other funding. PREPA XXXXX agrees to execute and deliver an agreement consenting to any assignment as collateral security in favor of the Project Lenders containing terms and conditions that are customary for transactions of this kind. PREPA XXXXX agrees to cooperate in good faith in this regard and to provide other customary and reasonable documents and acknowledgments as the Project Lenders may reasonably request in connection with the financing of the Facility, including estoppel certificates and direct agreement or consent to an assignment in accordance with this Section 19.3 and substantially in the form of Appendix X W (Form of Direct Agreement) and a legal opinion addressed to the Project Lenders with respect to due authorization and capacity of PREPA to enter into such agreement or consent, and enforceability thereof, in each case as reasonably acceptable to PREPA, provided that Resource Provider shall reimburse PREPA for the cost of negotiating and providing such documents, acknowledgments, opinions, certificates, consents, and agreements. In addition, Resource Provider shall have the right to assign this Agreement as collateral security to any agent, trustee, or other Person (including any corporation or partnership) representing the Project Lenders under the financing documents. If Resource Provider shall assign this Agreement as collateral security pursuant to this Section 19.3, then so long as the secured obligations, or any consolidation, modification, or extension of such obligation shall remain outstanding, the following provisions shall apply: a. The making of an assignment pursuant to the preceding provisions of this Section 19.3 shall not be deemed to constitute an assignment or transfer of this Agreement, nor shall any assignee referred to above, as such, be deemed to be an assignee or transferee of this Agreement so as to require such assignee, as such, to assume the performance of any of the terms and conditions of Resource Provider to be performed hereunder; provided that the purchaser at any sale of this Agreement in any proceeding for the foreclosure of any assignment, or the assignee or transferee of this Agreement in any proceedings for the foreclosure of any assignment, or the assignee or transferee of this Agreement under any instrument of assignment or transfer in lieu of the foreclosure of any assignment, shall be deemed to be an assignee or transferee within the meaning of this paragraph (a) of this Section 19.3 and shall be deemed to have agreed to perform all of the terms, covenants and conditions on the part of Resource Provider to be performed hereunder from and after the date of such purchase and assignment. b. Notwithstanding any other provision of this Agreement, any sale of Resource Provider’s rights in this Agreement in any secured creditor’s sale, any proceeding for the foreclosure of any assignment, or the assignment or transfer of this Agreement in lieu of the foreclosure of any assignment, shall be deemed to be a permitted sale, transfer or assignment of this Agreement, and this Agreement shall continue in full force and effect following any such sale, transfer or assignment. c. If PREPA terminates this Agreement prior to the expiration of the Term due to a Default by Resource Provider or rejects or disaffirms this Agreement pursuant to any bankruptcy Law or proceeding or other similar Applicable Law or proceedings affecting creditors’ rights generally with respect to a bankruptcy proceeding relating to Resource Provider or otherwise, PREPA agrees, if outstanding obligations to a Project Lender exist, and subject to the receipt of all necessary approvals, to enter into a new power purchase and operating energy storage services agreement with the Project Lender (or its designee or nominee) on substantially similar terms to this Agreement; provided that such designee or nominee (x) is Controlled by the Project Lender, (y) is approved by PREPA (which approval PREPA shall not unreasonably withhold or delay) and has provided to PREPA (i) its audited financial statements as per GAAP, demonstrating that such new designee or nominee has a tangible net worth of at least twenty-five million dollars ($25,000,000) (or its direct or indirect parent has a tangible net worth of at least seventy-five million dollars ($75,000,000))1375,000,000))12, (ii) evidence reasonably acceptable to PREPA that such new designee or nominee is or has engaged a Qualified Operator, and (iii) the certifications and documentation required by Appendix B (PREPA Signing Conditions), but construing references to Resource Provider therein as references 12 Note: These amounts align with FOMB requirements on prior transactions. to such new designee or nominee, and (z) has accepted all terms, provisions and limitations of this Agreement, effective as of the date of such termination. Resource Provider shall not have the right to assign its rights, title, or interest under this Agreement to any Affiliate of Resource Provider without the prior express written consent of PREPA, unless (i) such Affiliate agrees to be bound by the terms of this Agreement and to fully perform the obligations of Resource Provider hereunder (including Appendix B (PREPA Signing Conditions)), 13 Note: These amounts align with FOMB requirements on prior transactions., (ii) the Sponsor maintains at least the same percentage of the total Equity ownership interest in such Affiliate, whether directly or indirectly, as it owns, directly or indirectly, in Resource Provider at the time of such assignment, and (iii) Resource Provider or the Sponsor owns no less than fifty-fifty one percent (51%) of the total Equity. Resource Provider shall notify PREPA of Resource Provider’s intention to assign this Agreement at least thirty (30) Days in advance of any such assignment.