LIMITED ASSIGNMENT AGREEMENT
(BREA LANDFILL FACILITIES GAS-TO-POWER PROJECT)
This Limited Assignment Agreement (this “Assignment Agreement”) is entered into as of [____] by and among Brea Generation LLC, a Delaware limited liability company (“BG” or “PPA Seller”); Brea Power II, LLC, a Delaware limited liability company (“ BPII” or “PPA Seller”) (BG and BPII are collectively referred to as “ PPA Sellers ”); City of Anaheim, a municipal corporation organized and existing under the l aws of the State of California (“Anaheim”); and Southern California Public Power Authority, a public entity and joint powers authority formed and organized pursuant to the California Joint Exercise of Powers Act (California Government Code section 6500, et seq.) (“SCPPA”). This Assignment Agreement relates to that c ertain Consolidated, Amended and Restated Power Purchase Agreement by and among Anaheim and PPA Sellers dated December 15, 2009, as amended from time to time (the “PPA”), and to the Limited Assignment Agreement ( Brea Landfill Facilities Gas -to-Power Project) of even date herewith (the “SCPPA Assignment Agreement”) among PPA Seller s; SCPPA; and J. Aron & Company LLC, a New York limited liability company (“J. Aron”), further transferring the rights and obligations assigned, transferred, and conveyed hereby. Unless the context otherwise specifies or requires, capitalized terms used but not defined in this Assignment Agreement have the meanings set forth in the PPA.
In consideration of the mutual covenants and agreements herein set forth, PPA Seller s, Anaheim, and SCPPA (the “Parties” hereto; each is a “Party”) agree as follows:
1. Limited Assignment.
(a) Effective on the latest date on which this Assignment Agreement is executed by Anaheim, Anaheim hereby assigns, transfers , and conveys to SCPPA, and SCPPA hereby accepts and assumes, all of Anaheim’s rights (“Assigned Product Rights”) and obligations under the PPA to purchase, receive, and pay for the products described i n Appendix 1 (“Assigned Products”) during the Assignment Period (as defined in Appendix 1), as such rights are further limited or described in the “Further Information/Limitations” section on Appendix 1 and subject to the following additional terms:
(1) Anaheim hereby assigns to SCPPA the obligation to purchase the Assigned Products and pay the APC Contract Price (as defined in Appendix 1) for all Assigned Products that are actually delivered to or for the account of SCPPA or its assigns pursuant to the Assigned Product Rights during the Assignment Period (the “Delivered Product Payment Obligation” and, together with the Assigned Product Rights, collectively the “Assigned Rights and Obligations”), provided that the Parties acknowledge and agree that PPA Sellers will be obligated to deliver billing statements to Anaheim during the Assignment Period and shall simultaneously deliver copies thereof to J. Aron and SCPPA. Anaheim expressly retains all of its other rights and obligations under the PPA. Anaheim agrees that it will remain responsible for all payments due to PPA Sellers pursuant to the
2 Delivered Product Payment Obligation within ten (10) Business Days (as defined in the PPA) of receiving notice of non-payment from PPA Sellers; (2) All scheduling of Assigned Products under the PPA shall continue to take place between Anaheim and PPA Sellers pursuant to the terms of the PPA ; provided that (i) title to Assigned Product s will pass from PPA Sellers to SCPPA or its assigns upon delivery by PPA Sellers in accordance with the PPA; (ii) Anaheim is authorized by SCPPA to and shall act as the Scheduling Coordinator, as that term is defined in the PPA , with regard to scheduling Assigned Product s; (iii) Anaheim will provide copies to SCPPA and its assigns of any notice of Force Majeure or an Event of Default or default, breach, or other occurrence that if not cured within the applicable grace period could result in an Event of Default , which must be provided contemporaneously with any delivery of such notice to a PPA Seller and, as applicable, any collateral assignee or promptly after receipt thereof from a PPA Seller; (iv) PPA Sellers will provide copies to SCPPA and its assigns of forecasts delivered to Anaheim in accordance with Section 8.1 of the PPA and sections 3, 4, 5, 6, 7, 8, 9, and 10 of Appendix C to the PPA (and any updates to such forecasts); (v) PPA Sellers will provide copies to SCPPA and its assigns of all billing statements and supporting data that it provide s to Anaheim pursuant to Section 15 of the PPA, provided that any payment adjustments or subsequent reconciliations occurring after the date that is 10 days prior to the payment due date for a billing statement will be resolved solely between Anaheim and the PPA Sellers, and therefore the PPA Sellers will not be obligated to deliver copies of any communications relating thereto to SCPPA or its assigns; and (vi) Anaheim and PPA Sellers , as applicable, will provide copies to SCPPA and its assigns of any other information reasonably requested by SCPPA or its assigns relating to Assigned Products;
(3) Notwithstanding any other provision of this Assignment Agreement, Anaheim shall be entitled to retain for its own account all amounts payable by CAISO associated with delivery of the Assigned Products to CAISO, including where Anaheim is the Scheduling Coordinator for the Facilities (as defined in the PPA) and through scheduling of ISTs (as defined below); and
(4) If the Clean Energy Purchase Contract between Anaheim and SCPPA, dated [____], is terminated pursuant to the terms thereof, then ( i) this Assignment Agreement shall terminate on the same date ; (ii) SCPPA shall promptly notify each of the other Parties hereto of such termination; and ( iii) upon any such termination, the rights and obligations hereby assigned shall immediately revert to Anaheim as if the Assignment Agreement never existed.
As used in this clause ( 1)(a) above , the following terms have the meanings specified below:
“CAISO” means California Independent System Operator or its successor.
3 “CAISO Tariff ” means the CAISO’s Federal Energy Regulatory Commission approved tariff, as modified, amended, or supplemented from time to time.
“Inter-SC Trade” or “IST” has the meaning set forth in the CAISO Tariff. “Scheduling Coordinator ” means an entity certified by the CAISO as qualifying as a Scheduling Coordinator pursuant to the CAISO Tariff for the purposes of undertaking the functions specified in “Responsibilities of a Scheduling Coordinator,” of the CAISO, which in the instance of the PPA is Anaheim.
(b) PPA Seller s hereby consent and agree to the assignment, transfer, and conveyance described in clause (a) above, and SCPPA accepts the same, subject to the terms and limitations of this Assignment Agreement.
(c)
The “Assigned Prepay Quantity” set forth in Appendix 2 relates to rights and obligations by and among J. Aron, SCPPA, and Anaheim and has no impact on PPA Sellers ’ rights and obligations under the PPA.
2. Assignment Early Termination.
(a) The Assignment Period shall terminate early upon the occurrence of any of the following:
(1) delivery of a written notice of termination by either Anaheim or SCPPA to each of the other Parties hereto;
(2) delivery of a written notice of termination by PPA Sellers to Anaheim, SCPPA, and J. Aron following any failure to pay when due any amounts owed to PPA Sellers pursuant to the Delivered Product Payment Obligation, and such failure continues for ten (10) B usiness Days (as defined in the PPA) following receipt by such Parties of written notice thereof;
(3) delivery of a written notice by PPA Sellers or Anaheim to each of the other Parties to this Assignment Agreement and J. Aron if any of the events described in clauses (iv)-(vi) of Section 18.1 (bankruptcy) of the PPA occurs with respect to SCPPA or J. Aron as though SCPPA or J. Aron were a party to the PPA; or (4) delivery of a written notice by SCPPA or Anaheim to each of the other Parties to this Assignment Agreement and J. Aron if any of the events described in clauses (iv)-(vi) of Section 18.1 (bankruptcy) of the PPA occurs with respect to a PPA Seller.
(b) The Assignment Period will end at the end of the last delivery hour on the date specified in the termination notice provided pursuant to Section 2(a), which date shall not be earlier than the end of the last day of the calendar month in which such notice is delivered if termination is pursuant to clause 2 (a)(1) or 2(a)(2) above. All Assigned Rights and Obligations shall immediately revert to Anaheim, without further action by the Parties,
4 upon the early termination of the Assignment Period, provided that (i) SCPPA and its assigns shall remain responsible for the Delivered Product Payment Obligation with respect to any Assigned Product s delivered to or for the a ccount of SCPPA or its assign prior to the end of the Assignment Period, and (ii) any legal restrictions on the effectiveness of such reversion (whether arising under bankruptcy law or otherwise) shall not affect the expiration or early termination of the Assignment Period. (c) The Assignment Period will automatically terminate upon (i) the early termination of the PPA or (ii) the termination of the SCPPA Assignment Agreement, and, in each case, a ll Assigned Rights and Obligations shall immediately revert to Anaheim, without further action by the Parties, upon the early termination of the PPA or the SCPPA Assignment Agreement, as applicable, provided that (i) SCPPA and its assigns shall remain responsible for the Delivered Product Payment Obligation with respect to any Assigned Products delivered to or for the account of SCPPA or its assign prior to the end of the Assignment Period, and (ii) any legal restrictions on the effectiveness of such reversion (whether arising under bankruptcy law or otherwise) shall not affect the expiration or early termination of the Assignment Period.
3. Representations and Warranties.
(a) PPA Sellers and Anaheim represent and warrant to SCPPA and its assigns that (i) the PPA is in full force and effect; ( ii) no event or circumstance presently exists that would give any of them the right to terminate the PPA or suspend performance thereunder; and ( iii) all of their respective obligations under the PPA required to be performed on or before the date hereof have been fulfilled.
(b) PPA Sellers further represent to Anaheim, SCPPA , and its assigns that it has secured all consents to this Assignment Agreement that may be required by the PPA, any agreement referenced therein, or any assignment of its rights thereunder. (c) Anaheim and SCPPA each further represents and warrants to PPA Sellers that it has the right, power, and authority to enter into this Assignment Agreement, to become a Party hereto and to perform its obligations hereunder.
4. Miscellaneous. Section 19 (Limitation of Remedies, Liability and Damages ), Section 23 (Governing Law), and Section 26 (General) of the PPA are incorporated by reference into this Assignment Agreement, mutatis mutandis, as if fully set forth herein. For the avoidance of doubt, J.Aron shall be a “ SCPPA assign ” upon execution and delivery of the SCPPA Assignment Agreement for the duration of the Assignment Period.
5. Limited Obligation. Notwithstanding anything to the contrary herein, all obligations of SCPPA under this Assignment Agreement and all obligations under the PPA assumed by SCPPA hereby, including without limitation all obligations to make payments of any kind whatsoever, are special, limited obligations of SCPPA, payable solely from the Trust Estate (as such term is defined in the Trust Indenture, dated as of [_____], 2024, between SCPPA and U.S. Bank Trust Company, National Association, as trustee) as and to the extent provided in such Trust Indenture, including with respect to Operating Expenses (as such term is defined in
5 such Trust Indenture). SCPPA shall not be required to advance any moneys derived from any source other than the Revenues (as such term is defined in such Trust Indenture) and other assets pledged under such Trust Indenture for any of the purposes in this Assignment Agreement or the PPA. Neither the faith and credit of SCPPA nor the taxing power of the State of California or any political subdivision thereof is pledged to payments pursuant to this Assignment Agreement or the PPA. SCPPA shall not be directly, indirectly, contingently or otherwise liable for any costs, expenses, losses, damages, claims or actions, of any conceivable kind on any conceivable theory, under or by reasons of or in connection with this Assignment Agreement or the PPA, except solely to the extent Revenues (as such term is defined in such Trust Indenture) are received for the payment thereof and may be applied therefor pursuant to the terms of such Trust Indenture.
6. Notices. Any notice, demand, or request required or authorized by this Assignment Agreement to be given by one Party to another Party s
hall be in writing and shall either be sent by email
transmission (to the extent the intended receiving Party has provided an email address for notices sent pursuant to this Section 6 ), courier, or personal delivery (including overnight delivery service) to each of the notice recipients and addresses (including email addresses, if applicable) specified in this Section 6 for the receiving Party. Any such notice, demand, or request shall be deemed to be given ( a) when actually received if delivered by email transmission or (b) when actually received if delivered by courier or personal delivery (including overnight delivery service). Each Party shall have the right, upon 10 days’ prior written notice to the oth er Party, to change its list of notice recipients and addresses set forth below.
If to SCPPA:
Southern California Public Power Authority
Attention: Executive Director
1160 Nicole Court
Glendora, CA 91740
Email: [email protected]
If to J. Aron:
J. Aron & Company LLC
200 West Street
New York, New York 10282-2198
Email: [email protected]
If to Anaheim: With a Copy to:
City of Anaheim City of Anaheim
Attn: City Clerk Attn:
Public Utilities General Manager
200 South Anaheim Blvd., 2nd Floor 201 South Anaheim Blvd., Suite 1101 Anaheim, CA 92805 Anaheim, CA 92805
If to PPA Sellers: With a Copy to:
BREA POWER II, LLC EDL Holdings (US), Inc.
2501 Coolidge Rd, Suite 100 2501 Coolidge Rd, Suite 100 East Lansing, Michigan 48823 East Lansing, Michigan 48823
6 Attn: Contract Manager Attn: General Counsel, NA
Email: [email protected] Email: [email protected]
BREA GENERATION LLC
2501 Coolidge Rd, Suite 100
East Lansing, Michigan 48823
Attn: Contract Manager
Email: [email protected]
7. Governing Law, Jurisdiction, and Waiver of Jury Trial. (a) Governing Law.
THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND DUTIES OF THE
PARTIES UNDER THIS ASSIGNMENT AGREEMENT WILL BE GOVERNED BY
AND CONSTRUED, ENFORCED, AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
(b) Jurisdiction.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT
OF OR RELATING TO THIS ASSIGNMENT AGREEMENT SHALL BE BROUGHT
EXCLUSIVELY IN A COURT WITH JURISDICTION P ROVIDED IN THE PPA FOR
JUDICIAL PROCEEDINGS ARISING OUT OF OR RELATED THERETO, AND EACH PARTY CONSENTS TO SUCH JURISDICTION.
(c) Waiver of Right to Jury Trial.
EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW AND PROVIDED IN THE PPA FOR DISPUTES THEREUNDER,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION, OR PROCEEDING RELATING TO THIS ASSIGNMENT AGREEMENT.
8. Further Assignments. Except as provided in the SCPPA Assignment Agreement, SCPPA and J. Aron are prohibited from further transferring to third parties the rights and obligations assigned, transferred, and conveyed hereby without first obtaining the express, written approval of Anaheim and PPA Sellers.
[Remainder of Page Intentionally Blank]
7 IN WITNESS WHEREOF, the Parties have executed this Assignment Agreement effective as of the date first set forth above.
BREA POWER II, LLC
By: Brea Parent 2007, LLC, its manager
By: Broadrock Biopower I, LLC, its manager
By: EDL Holdings (US), Inc., its sole member
By:
Name:
Title:
BREA GENERATION LLC
By: Brea Parent 2007, LLC, its manager
By: Broadrock Biopower I, LLC, its manager
By: EDL Holdings (US), Inc., its sole member
By:
Name:
Title:
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
By:
Name:
Title:
CITY OF ANAHEIM
By:
Name:
Title: _____________________________
ATTEST:
By: ______________________________
Name:
Title: ____________________________
APPROVED AS TO FORM:
ANAHEIM CITY ATTORNEY’S OFFICE
By: ______________________________
Name:
Title: _____________________________
APPENDIX 1
Assignment Schedule
APC Contract Price: $112.60/MWh (as provided in Section 4.2 of the PPA), including startup and test energy.
Assignment Period : The period beginning on [____] and extending through and until [____], provided that in no event shall the Assignment Period extend past the earlier of (i) the termination of the Assignment Period pursuant to Section 2 of the Assignment Agreement and (ii) the end of the Delivery Term under the PPA ; provided that applicable provisions of this Assignment Agreement shall continue in effect after termination of the Assignment Period to the extent necessary to enforce or complete, duties, obligations, or responsibilities of the Parties arising prior to the termination.
Assigned Products: (1) all of the Scheduled Quantity of Energy, including title and risk of loss, in accordance with Sections 5.1 and 13 of the PPA; (2) all Renewable Energy Credits (“RECs”), as defined in Section 9.4 of the PPA, associated with all electricity generation from the Facility in accordance with Section s 5.1 and 13 of the PPA; and (3) the right to assign, convey, transfer, allocate, designate, award, report, or otherwise provide RECs to third parties in accordance with Section 9.4 of the PPA (collectively, the “Assigned Products”). The Assigned Products exclude, inter alia, PPA Sellers’ Retained Products, as that term is defin ed in the PPA ; Capacity Rights; Excess Negative CO2 Air Emissions Credits; Resource Adequacy Requirements or RAR; the remainder of the Environmental Attributes ; and the remainder of the Included Products, as those terms are defined in the PPA; and exclude Anaheim’s right to damages for PPA Sellers’ failure to perform in accordance with Sections 7, 12, and 13 of the PPA.
Further Information/Limitations: PPA Sellers shall continue to transfer WREGIS Certificates associated with all REC s corresponding to the Scheduled Quant ity of Energy under the PPA to Anaheim consistent with Section 9.4 of the PPA, provided that the transferee of such WREGIS Certificates may be changed from time to time in accordance with written instructions from Anaheim (i) upon twenty (20) Business Days’ notice and (ii) subject to the new transferee’s prior written consent, which change shall be effectiv e as of the first day of the next calendar month, unless otherwise agreed. All Assigned Product s delivered by PPA Sellers to SCPPA and its assigns shall be a sale made at wholesale, with SCPPA and its assigns reselling all such Assigned Products.
APPENDIX 2
Assigned Prepay Quantity
Month Assigned Prepay Quantity
1/1/2025
2/1/2025
3/1/2025
4/1/2025
5/1/2025
6/1/2025
7/1/2025
8/1/2025
9/1/2025
10/1/2025
11/1/2025
12/1/2025
1/1/2026
2/1/2026
3/1/2026
4/1/2026
5/1/2026
6/1/2026
7/1/2026
8/1/2026
9/1/2026
10/1/2026
11/1/2026
12/1/2026