Execution Version
CONSENT AND DIRECT AGREEMENT
This CONSENT AND DIRECT AGREEMENT (this “ Agreement”), dated as of October 11, 2023, is entered into by and among (i) Alameda Municipal Power, a department of the City of Alameda, California (formerly, “Alameda Power & Telecom”) (together with its permitted successors and assigns, the “ Undersigned”), (ii) HA RNG 1 LENDER LLC, a limited liability company organized and existing under the laws of the State of Delaware (the “ Lender” and, together with its successors, designees, and assigns, the “ Secured Parties”), and (iii) Ameresco Half Moon Bay LLC, a limited liability company organized and existing under the laws of the State of Delaware (together with its permitted successors and assigns, other than the Lender or a Subsequent Owner (as defined below), the “Assignor”).
RECITALS
A. Assignor has contracted for the rights to the landfill gas collected from the Ox Mountain Landfill that will be used in a landfill gas -fueled electric generation facility on a site at the Ox Mountain Landfill (the “Plant”).
B. Assignor and the Undersigned entered into that certain Power Purchase Agreement, dated as of February 2, 2005 (as further amended, restated, amended and restated, supplemented, or otherwise modified from time to time in accordance with the terms thereof , the “ Assigned Agreement”).
C. Pursuant to that certain Amended and Restated Loan Agreement, dated as of September 28, 2023, by and between Ameresco RNG Holdings I LLC, a Delaware limited liability company (“ Holdings”), and the Lender (as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Loan Agreement”), the Lender has agreed to provide a loan to Holdings, with such loan secured in part by the collateral assignment by the Assignor of all of its rights, title, and interest in, to, and under the Assigned Agreement to and for the benefit of the Secured Parties.
D. It is a condition precedent to the obligations of the Lender to make the loan that this Agreement be executed and delivered by the Assignor, the Lender, and the Undersigned.
2 AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows (provided that, in the event of any conflict between this Agreement and the Assigned Agreement, this Agreement shall govern and control in all cases):
1. Definitions. Each capitalized term used and not otherwise defined herein will have the meaning assigned to such term (whether directly or by reference to another document or agreement) in the Assigned Agreement.
2. Assignment and Agreement
(a) Consent to Collateral Assignment . The Undersigned (i) is hereby notified and acknowledges that the Lender has made extensions of credit to the Assignor, pursuant to the terms of the Loan Agreement and other agreements and documents related thereto (each a “ Financing Document” and together the “Financing Documents”), in reliance upon the execution and delivery by the Undersigned of this Agreement; (ii) consents to the collateral assignment of all of the Assignor’s right, title, and interest in, to, and unde r the Assigned Agreement, including, without limitation, all of the Assignor’s rights to receive all payments due and to become due to the Assignor under or with respect to the Assigned Agreement (collectively, the “Assigned Interests”); and (iii) acknowledges the right of the Lender, in the exercise of the Lender’s rights and remedies pursuant to the Financing Documents, upon written notice to the Undersigned, to make all demands, give all notices, take all actions, and exercise all r ights of the Assignor under the Assigned Agreement (including, without limitation, subsequent assignments of the Assigned Agreement or the Assigned Interests, as provided herein). (b) Subsequent Owner. (i) The Undersigned agrees that, if the Lender notifies the Undersigned in writing that it has foreclosed on and taken assignment of the Assigned Agreement, or assigned or sold the Assigned Interests or any portion thereof, then (A) the Lender or its permitted successor, assignee, and/or designee, or any purchaser of the Assigned Interests following a permitted sale, assignment, or other transfer of the Assigned Interests (a “Subsequent Owner”) will be substituted for the Assignor under the Assigned Agreement (and further, Lender through this Agreement and without further writings or instruments being necessary, can and hereby does assume all of the Assignor’s rights and obligations as of the date of such foreclosure, and is duly substituted for the Assignor in such case) and (B) the Undersigned shall (1) recognize the Lender or the Subsequent Owner, as the case may be, as its counterparty or beneficiary, as applicable, under the Assigned Agreement and (2) continue to perform its obligation s under the Assigned Agreement in favor of the Lender or the Subsequent Owner, as the case may be; provided that such Subsequent Owner has assumed in writing (through an “Assumption Agreement”) all of the Assignor’s rights and obligations (including, without limitation, the obligation to cure any then- existing payment and performance defaults, but excluding any obligation to cure any then-existing performance defaults which by their nature are incapable of being cured under the Assigned Agreement (“Incurable Defaults”); but further provided, however, that the Undersigned does not waive any rights it may have under the Assigned Agreement for such Incurable Defaults), and which Assumption Agreement must be fully executed before any other party besides Lender
3 becomes a Subsequent Owner under this Agreement by any permitted sale, assignment or other transfer, and further before Lender may assign or otherwise transfer the rights and obligations of the Assigned Agreement to any other party, and provided further that, in the case of any such assumption of the Assigned Agreement by a Subsequent Owner, the Undersigned has reasonably determined that such purchaser or transferee has the technical and financial capability to perform the Assignor’s obligations under the Assigned Agreement to no less than the extent possessed by the Assignor immediately prior to such transfer, or if such Subsequent Owner lacks such capabilities, such Subsequent Owner has contracted with advisors or contractors who possess such capabilities, as reasonably determined by the Undersigned; and (ii) without limiting anything herein, the warranties provided by the Undersigned under the Assigned Agreement shall continue in full force and effect (until the expiration of the applicable warranty period s set forth in the Assigned Agreement) in the event that the Lender or a Subsequent Owner succeeds to the Assignor’s right, title, and interest in the Assigned Agreement. For avoidance of doubt, except for Lender, no party may become a Subsequent Owner wi thout first executing an Assumption Agreement in a form reasonably acceptable to the Undersigned. (c) No Amendments . The Undersigned agrees that it shall not, without the prior written consent of the Lender or Subsequent Owner, (i) sell, assign, encumber or otherwise transfer any of its rights under the Assigned Agreement, other than in accordance with the Assigned Agreement, (ii) consent to any assignment or other transfer by the Assignor of its rights under the Assigned Agreement, (iii) consent to any material amendment of the Assigned Agreement, (iv) terminate, cancel or suspend performance under the Assigned Agreement, except as provided in the Assigned Agreement or by operation of law, or (v) consent to any voluntary termination, cancellation, or suspension of performance by the Assignor under the Assigned Agreement; provided, however , that the Undersigned may, without the prior consent of the Lender or Subsequent Owner, assign, sell, or otherwise transfer its right, title, and interest in the Assigned Agreement (in whole or in part) so long as the Undersigned contemporaneously assigns this Agreement to the acquiring party.
(d) Right to Cure. The Lender may cure any breach or default by the Assignor under the Assigned Agreement. In the event of a default by the Assignor in the performance of any of its obligations under the Assigned Agreement, or upon the occurrence or non -occurrence of any event or condition under the Assigned Agreement that would immediately or with the passage of any applicable grace period or the giving of notice, or both, enable the Undersigned to terminate the Assigned Agreement (such default, event, or co ndition and the Assignor’s failure to cure the same, a “Default”), the Undersigned shall not terminate the applicable Assigned Agreement until it first gives prompt written notice of such Default to the Lender and affords the Lender or its designee(s) or assignee(s) a period of no more than 10 days (or, if such Defaul t is a nonmonetary default, such longer period as is required so long as any such party has commenced and is diligently pursuing appropriate action to cure such Default, provided that such longer period will not exceed 30 days) from receipt of such notice to cure such Default; provided, however, that, if possession of the Plant is necessary to cure such Default and the Lender or its designee(s) or assignee(s) has commenced foreclosure proceedings, the Lender or its designee(s) or assignee(s) will be allowed a reasonable time to complete such pro ceedings; provided, further , that, if the Lender or its designee(s) or assignee(s) is prohibited from curing any such Default by any process, stay, or injunction issued by any governmental authority or pursuant to any bankruptcy or insolvency proceeding or other similar proceeding, then the time periods specified herein for curing a Default
4 will be extended for the period of such prohibition. If the Assigned Agreement is rejected or otherwise terminated as a result of any bankruptcy or insolvency proceeding affecting the assigning party, then, to the extent permitted by applicable law, the no n-assigning party will, at the request of the Lender, enter into a new agreement with Lender or a permitted assignee thereof having terms no less favorable to the non -assigning party than the terms of the Assigned Agreement; provided that any obligations of the assigning party that were outstanding at the time of any such bankruptcy or insolvency proceeding are paid in full or brought current, as the case may be, at the time any such new agreement is entered into (without taking into account the effect of any such bankruptcy or insolvency proceedings).
(e) Limitations on Liability. The Undersigned acknowledges and agrees that neither the Lender nor a Subsequent Owner will have any liability or obligation under the Assigned Agreement merely as a result of entering into this Agreement, nor will the Lender or a Subsequent Owner be obl igated or required to (A) perform any of the Assignor’s obligations under the Assigned Agreement, except during any period in which the Lender or a Subsequent Owner has assumed the Assignor’s rights and obligations under the Assigne d Agreement pursuant to Section 2(b)(i) above, or (B) take any action to collect or enforce any claim for payment. If the Lender or a Subsequent Owner has assumed the Assignor’s rights and obligations under the Assigned Agreement (Lender and/or Subsequent Owner still being obligated to observe the terms of such Assigned Agreement) pursuant to Section 2(b)(i) above, the sole recourse of the Undersigned in seeking enforcement of the obligations under such agreement will be limited to claims against the interests held by the Lender or a Subsequent Owner in the Plant. (f) Delivery of Notices. The Assignor shall deliver to the Lender, concurrently with the delivery thereof to the Assignor, a copy of each notice, request, or demand given by the Undersigned to the Assignor pursuant to the Assigned Agreement relating to a default by the Assignor under the Assigned Agreement.
3. Payments Under the Assigned Agreement
(a) Payments. The Undersigned shall pay all amounts (if any) payable by it under the Assigned Agreement in the manner and as and when required by the Assigned Agreement directly into the account specified on Exhibit A hereto, or to such other person, entity, or account as specified from time to time by the Lender to the Undersigned in writing. Notwithstanding the foregoing, from and after such time as any entity or person has become a Subsequent Owner pursuant to the t erms hereof, the Undersigned shall pay all such am ounts directly to such Subsequent Owner or an account designated by the Subsequent Owner. (b) No Offset, Etc. All payments required to be made by the Undersigned under the Assigned Agreement will be made without any offset, recoupment, abatement, withholding, reduction, or defense whatsoever, other than those allowed by the terms of the Assigned Agreement or applicable law.
4. Representations and Warranties of the Undersigned . The Undersigned hereby represents and warrants, in favor of the Lender, as of the date hereof, that:
5 (a) the Undersigned (i) is a department of the City of Alameda, a chartered city and municipal corporation in the State of California, (ii) is duly qualified, authorized to do business on, and in good standing in every jurisdiction necessary to perform its obligations under the Assigned Agreement and this Agreement, and (iii) has all requisite power and authori ty to enter into and to perform its obligations hereunder and under the Assigned Agreement, and to carry out the terms hereof and thereof and the transactions contemplated hereby and thereby; (b) the execution, delivery and performance by the Undersigned of this Agreement and the Assigned Agreement have been duly authorized by all necessary corporate or other action on the part of the Undersigned and do not require any approvals, filings with, or consents of any entity or person, which have not previously been obtained or made; (c) with respect to the Undersigned, each of this Agreement and the Assigned Agreement is in full force and effect, has been duly executed and delivered on behalf of the Undersigned by the appropriate officers of the Undersigned, and constitutes the legal, val id, and binding obligation of the Undersigned, enforceable against the Undersigned in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcem ent of creditors’ rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at law); (d) there is no legislation, litigation, action, suit, proceeding or investigation pending or, to the Undersigned’s knowledge, threatened against the Undersigned before or by any court, administrative agency, arbitrator, or governmental authority, body, or age ncy that, if adversely determined, individually or in the aggregate, (a) could adversely affect the performance by the Undersigned of its obligations hereunder or under the Assigned Agreement, (b) could have a material adverse effect on the condition (fina ncial or otherwise), business, or operations of the Undersigned, or (c) questions the validity, binding effect, or enforceability of this Agreement or of the applicable Assigned Agreement, any action taken or to be taken pursuant hereto or thereto, or any of the transactions contemplated hereby or thereby; (e) all governmental approvals necessary for the execution, delivery and performance by the Undersigned of its obligations under the Assigned Agreement have been obtained and are in full force and effect, except those governmental approvals routinely obtained during the ordinary course of business during the execution of the Plant; (f) Assignor has performed all of its obligations under the Assigned Agreement in all material respects, and neither the Undersigned nor Assignor is in breach or default of any of its obligations thereunder beyond any notice and cure periods (nor has any event occurred which would constitute a default but for the giving of notice or passage of time); (g) to the Undersigned’s knowledge, there are no facts entitling the Undersigned to any claim, counterclaim, offset or defense against Assignor with respect to the Assigned Agreement; (h) Assignor does not owe any indemnity payments or other amounts to the Undersigned under the Assigned Agreement, and the Undersigned is not aware of any existing counterclaims, offsets, or defenses against the Assignor under the Assigned Agreement; and
6 (i) all representations and warranties made by the Undersigned in the Assigned Agreement were true and correct in all material respects on and as of the date when made and, except for those that by their terms speak as of a specific date, are true and correct in all material respects on and as of the date of this Agreement.
Each of the representations and warranties set forth in this Section 4 will survive the execution and delivery of this Agreement and the Assigned Agreement and the consummation of the transactions contemplated hereby and thereby.
5. Miscellaneous
(a) Notices. Any communications between the parties hereto or notices provided herein to be given may be given to the following addresses:
If to the Assignor:
c/o Ameresco, Inc.
111 Speen Street, Suite 410
Framingham, MA 01701
Attention: Spencer Doran Hole, EVP & CFO
Telephone: (508) 661-2200
Email: [email protected]
with a copy (not constituting notice) to:
Ameresco, Inc.
111 Speen Street, Suite 410
Framingham, MA 01701
Attention: General Counsel
Email: [email protected] and [email protected]
If to the Undersigned:
Alameda Municipal Power
2000 Grand St
Alameda, CA 94501
Attention: Alan Harbottle, Supervisor Energy Resources
Telephone: (510) 814-6403
Email: [email protected]
If to the Lender: HA RNG 2 Lender LLC
One Park Place, Suite 200
Annapolis, MD 21401
Attention: Legal Department
Telephone: (410) 571-9860
Fax: (410) 571-6199
7 Email: [email protected]
All notices and communications provided for hereunder must be in writing and sent (a) by electronic mail (email), (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by an internationally recognized overnight delivery service (with charges prepaid).
Notices under this Section 5 will be deemed given only when actually received. Any party may change its address for notice hereunder by giving of 30 days’ notice to the other parties in the manner set forth hereinabove.
(b) Governing Law and Venue. This Agreement (i) will be governed by, construed, and enforced in accordance with governing law of the Assigned Agreement, and (ii) is subject to the venue provisions of the Assigned Agreement.
(c) Counterparts. This Agreement may be executed in any number of counterparts, each of which when delivered (including electronic delivery in Portable Document Format (.pdf)) is an original, but all of which together constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.
(d) Headings Descriptive. The headings of the several sections and subsections of this Agreement are inserted for convenience only and do not in any way affect the meaning or construction of any provision of this Agreement.
(e) Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction will (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction. (f) Amendment, Waiver. Neither this Agreement nor any of the terms hereof may be terminated, amended, restated, amended and restated, supplemented, or otherwise modified except by an instrument in writing signed by the Undersigned and the Lender. (g) Successors and Assigns . This Agreement is binding upon and benefits the Undersigned, the Lender, and their respective permitted successors and assigns. (h) Third-Party Beneficiaries. The Undersigned and the Lender hereby acknowledge and agree that Secured Parties are intended third-party beneficiaries of this Agreement. (i) Refinancing. The Undersigned agrees and acknowledges that the loan and other secured obligations under the Loan Agreement may be refinanced, extended, renewed, or replaced from time to time pursuant to another bank financing, an institutional financing, a capital markets financing, a lease financing, or any other combination thereof or other form of financing and that, in any such event, (i) this Agreement will remain in full force and effect and continue to apply in favor of the Lender or any replacement collateral agent and secured parties (the replacement collateral agent and secured parties in such case being the “ New Secured Parties ”) under such refinancing, extension, renewal, replacement, or other arrangements, including, as applicable, any additional or replacement credit or security documents entered into in connection therewith, and
8 (ii) the terms “Lender,” “Loan Agreement,” “Financing Documents,” and “Secured Parties,” as used hereunder will in each case be deemed to refer to such parties, loans, or agreements, as may be the case, under or in connection with the applicable refinancin g, extension, renewal, replacement, or other arrangements; provided that the Assignor shall deliver notice to the Undersigned of the identity of such new parties and new payment instructions within 15 days of such refinancing, and further provided that such New Secured Parties have agreed in writing in a form reasonably acceptable to Undersigned to assume the obligations of this Agreement prior to becoming New Secured Parties.
(j) Further Assurances. The Assignor and the Undersigned hereby agree to execute and deliver all such instruments and take all such action as may be reasonably necessary to effectuate fully the purposes of this Agreement.
(k) WAIVER OF TRIAL BY JURY. THE PARTIES HERETO HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT.
(l) Entire Agreement . This Agreement embody the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof.
[Remainder of Page Intentionally Left Blank; Signature Pages Immediately Follow]
[Signature Page to Consent and Direct Agreement]
IN WITNESS WHEREOF, the parties hereto, by their officers duly authorized, intending to be legally bound, have caused this Agreement to be duly executed and delivered as of the date first above written.
AMERESCO HALF MOON BAY LLC, as Assignor
By:________________________________
Name:
Title:
[Signature Page to Consent and Direct Agreement]
ALAMEDA MUNICIPAL POWER, as Undersigned
By:
Name:
Title:
Approved as to Form By:
Name:
Title:
[Signature Page to Consent and Direct Agreement]
HA RNG 1 LENDER LLC
as Lender
By:
Name:
Title:
Exhibit A
Exhibit A
Payment Instructions
Wilmington Trust/M&T Bank
1100 North Market Street
Wilmington, DE 19890-1605
ABA NO. 031100092
For Credit to Account # 158428-000
For Credit to Account Name: Ameresco RNG – Revenue AC