CLEAN ENERGY PURCHASE CONTRACT
between
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
and
CITY OF ANAHEIM
Dated as of [____], 2024
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS ........................................................................................................2 Section 1.1 Defined Terms ................................................................................................2 Section 1.2 Definitions; Interpretation .............................................................................12 ARTICLE II. DELIVERY PERIOD; NATURE OF CLEAN ENERGY PROJECT; CONDITION PRECEDENT ........................................................................12 Section 2.1 Delivery Period .............................................................................................12 Section 2.2 Condition Precedent ......................................................................................12 Section 2.3 Pledge of this Agreement ..............................................................................12 ARTICLE III. SALE AND PURCHASE; PRICING ...............................................................13 Section 3.1 Sale and Purchase of Product ........................................................................13 Section 3.2 Purchaser Payments ......................................................................................13 Section 3.3 Annual Refund ..............................................................................................14 Section 3.4 Reset Period Remarketing.............................................................................14 Section 3.5 Limited Obligation to Take Base Quantities ................................................15 ARTICLE IV. FAILURE TO SCHEDULE PRODUCT .........................................................16 Section 4.1 Issuer’s Failure to Schedule Base Quantity (Not Due to Force Majeure) ........................................................................................................16 Section 4.2 Purchaser’s Failure to Schedule or Receive Base Quantities (Not Due to Force Majeure) ..................................................................................16 Section 4.3 Assigned Product ..........................................................................................17 Section 4.4 Sole Remedies ...............................................................................................17 ARTICLE V. DELIVERY POINTS; SCHEDULING .............................................................17 Section 5.1 Delivery Points..............................................................................................17 Section 5.2 Transmission and Scheduling .......................................................................17 Section 5.3 Title and Risk of Loss ...................................................................................18 Section 5.4 Communications Protocol .............................................................................18 Section 5.5 Deliveries within CAISO or another Balancing Authority ...........................18 Section 5.6 Assigned Products .........................................................................................18
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ARTICLE VI. ASSIGNMENT OF POWER PURCHASE AGREEMENTS ........................18 Section 6.1 Assignments Generally .................................................................................18 Section 6.2 Failure to Obtain EPS Compliant Energy .....................................................20 Section 6.3 Adjustments to Base Quantities ....................................................................20 ARTICLE VII. USE OF PRODUCT .........................................................................................21 Section 7.1 Tax Exempt Status of the Bonds ...................................................................21 Section 7.2 Priority Products ...........................................................................................21 Section 7.3 Assistance with Sales to Third Parties ..........................................................21 Section 7.4 Qualifying Use ..............................................................................................21 Section 7.5 Remediation ..................................................................................................22 Section 7.6 Remediation; Ledger Entries; Redemption ...................................................22 ARTICLE VIII. REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS ................................................................................................23 Section 8.1 Representations and Warranties ....................................................................23 Section 8.2 Warranty of Title...........................................................................................24 Section 8.3 Disclaimer of Warranties ..............................................................................25 Section 8.4 Continuing Disclosure ..................................................................................25 ARTICLE IX. TAXES.................................................................................................................25 ARTICLE X. JURISDICTION ..................................................................................................25 ARTICLE XI. FORCE MAJEURE ...........................................................................................26 Section 11.1 Applicability of Force Majeure .....................................................................26 Section 11.2 Settlement of Labor Disputes........................................................................26 ARTICLE XII. GOVERNMENTAL RULES AND REGULATIONS ...................................26 Section 12.1 Compliance with Laws .................................................................................26 Section 12.2 Contests .........................................................................................................27 Section 12.3 Defense of Agreement ..................................................................................27
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ARTICLE XIII. ASSIGNMENT ................................................................................................27 ARTICLE XIV. PAYMENTS.....................................................................................................27 Section 14.1 Monthly Statements ......................................................................................28 Section 14.2 Payments .......................................................................................................29 Section 14.3 Payment of Disputed Amounts .....................................................................29 Section 14.4 Late Payment ................................................................................................29 Section 14.5 Audit; Adjustments .......................................................................................29 Section 14.6 Netting; No Set-Off.......................................................................................30 Section 14.7 Source of Purchaser’s Payments ...................................................................30 Section 14.8 Rate Covenant ...............................................................................................30 Section 14.9 Pledge of Utility Revenues ...........................................................................31 Section 14.10 Financial Responsibility................................................................................31 ARTICLE XV. [RESERVED] ....................................................................................................31 ARTICLE XVI. NOTICES .........................................................................................................31 ARTICLE XVII. DEFAULT; REMEDIES; TERMINATION ...............................................32 Section 17.1 Issuer Default ................................................................................................32 Section 17.2 Purchaser Default ..........................................................................................32 Section 17.3 Remedies Upon Default ................................................................................33 Section 17.4 Termination of Master Power Supply Agreement; Failed Bond Remarketing ..................................................................................................34 Section 17.5 Limitation on Damages .................................................................................34 ARTICLE XVIII. MISCELLANEOUS .....................................................................................35 Section 18.1 Indemnification Procedure. ...........................................................................35 Section 18.2 Deliveries ......................................................................................................35 Section 18.3 Entirety; Amendments ..................................................................................36 Section 18.4 Governing Law .............................................................................................36 Section 18.5 Non-Waiver...................................................................................................36 Section 18.6 Severability ...................................................................................................36 Section 18.7 Exhibits .........................................................................................................36 Section 18.8 Winding Up Arrangements ...........................................................................36 Section 18.9 Relationship of Parties ..................................................................................36
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Section 18.10 Immunity .......................................................................................................37 Section 18.11 Rates and Indices ..........................................................................................37 Section 18.12 Limitation of Liability...................................................................................37 Section 18.13 Counterparts ..................................................................................................37 Section 18.14 Third Party Beneficiaries; Rights of Trustee ................................................37 Section 18.15 Waiver of Defenses .......................................................................................38 Section 18.16 Limitations on Certain Provisions. ...............................................................38 Section 18.17 Rate Changes ................................................................................................38
Exhibit A-1 — Base Quantities; Base Delivery Points; Commodity Reference Prices Exhibit A-2 — Assigned Rights and Obligations
Exhibit B — Notices
Exhibit C — Remarketing Election Notice
Exhibit D — Form of Federal Tax Certificate
Exhibit E — Purchaser’s Opinion of Counsel
Exhibit F — Assignment of Assignable Power Contracts
Exhibit G — Communications Protocol
Exhibit H — Pricing and Other Terms
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CLEAN ENERGY PURCHASE CONTRACT
This Clean Energy Purchase Contract (this “Agreement”) is made and entered into as of [____], 2024 (the “Execution Date”), by and between Southern California Public Power Authority, a joint powers authority organized pursuant to the laws of the State of California (“Issuer”) and City of Anaheim, a municipal corporation organized and existing under the L aws of the State of California (“Purchaser”).
W I T N E S S E T H:
WHEREAS, Issuer has planned and developed a project (the “Clean Energy Project”) to acquire long-term supplies of Product from Aron Energy Prepay 23 LLC, a Delaware limited liability company (together with its permitted successors and assigns, “Prepay LLC”) and a wholly-owned subsidiary of The Goldman Sachs Group, Inc., pursuant to a Master Power Supply Agreement, dated as of [___], 2024 (the “Master Power Supply Agreement”), to meet a portion of the Product supply requirements of Purchaser;
WHEREAS, Purchaser desires to enter into an agreement with Issuer for the purchase of Product acquired by the Issuer under the Clean Energy Purchase Project; WHEREAS, Issuer will finance its payment for Product under, and the other costs of, the Clean Energy Purchase Project by issuing Bonds; WHEREAS, Purchaser owns and operates an electric utility under authority of the laws of the State of California for the transmission, distribution, sale, and delivery of Product to retail electric consumers within its service area;
WHEREAS, Purchaser is agreeable to purchasing a portion of its Product requirements from Issuer under the terms and conditions set forth in this Agreement, and Issuer is agreeable to selling to Purchaser such supplies of Product under the terms and conditions set forth in this Agreement;
WHEREAS, in connection herewith and subject to the terms hereof , Issuer at the request of Purchaser is assigning and in the future may assign to J. Aron (as defined below) certain Assigned Rights and Obligations (as defined below), including the right to receive Assigned Product (as defined below), which Assigned Product will be resold to Prepay LLC under the Electricity Sale and Service Agreement, then resold to Issuer under the Master Power Supply Agreement, and then resold to Purchaser hereunder; and
WHEREAS, as a condition precedent to the effectiveness of the Parties’ obligations under this Agreement, Issuer shall have entered into the Master Power Supply Agreement and shall have issued the Bonds.
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NOW, THEREFORE, in consideration of the premises above and the mutual covenants and agreements herein set forth, Issuer and Purchaser (the “Parties” hereto; each is a “Party”) agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Defined Terms . The following terms, when used in this Agreement (including the preamble or recitals to this Agreement ) and identified by the capitalization of the first letter thereof, have the respective meanings set forth below, unless the context otherwise requires:
“A
dministrative Fee ” means the amount per MWh specified as such in Exhibit H. “Affiliate” means, with respect to either Party , any entity which is a direct or indirect parent or subsidiary of such Party or which directly or indirectly (i) owns or controls such Party, (ii) is owned or controlled by such Party, or (iii) is under common ownership or control with such Party. For purposes of this definition, “ control” of an entity means the power, directly or indirectly, either to (a) vote 50% or more of the securities having ordinary voting power for the election of directors or Persons performing similar functions or (b) direct or cause the direction of the management and policies, whether by contract or otherwise. “A greement ” has the meaning specified in the preamble and shall include exhibits, recitals and attachments referenced herein and attached hereto. “A lternate Delivery Point” has the meaning specified in Section 5.1(a). “Annual Refund” means the annual refund, if any, to be provided to the Purchaser and calculated pursuant to the procedures specified in Section 3.3. “APC Contract Price” has the meaning specified in Exhibit F. “APC Party” has the meaning specified in Exhibit F.
“Applicable Project” has the meaning specified in Exhibit F. “Assignable Power Contract” has the meaning specified in Section 6.1. “Assigned Delivery Point ” means, with respect to any Assigned Energy, the Assigned Delivery Point as set forth in the applicable Assigned PPA. “A ssigned Discounted Product ” means, for any Month and with respect to any Assigned PPA, the total Assigned Prepay Quantities for such Assigned PPA actually delivered pursuant to such Assigned PPA and the Assigned Rights and Obligations in such Month.
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“Assigned Energy” means any Energy, including Energy associated with PCC1 Product and Long -Term PCC1 Product , to be delivered to J. Aron or any successor thereto pursuant to any Assigned Rights and Obligations.
“A ssigned PAYGO Product” means, for any Month with respect to an Assigned PPA, the amount, if any, by which the total quantity of Assigned Product delivered under such Assigned PPA in such Month exceeds the Assigned Prepay Quantity for such Assigned PPA for such Month.
“A ssigned P PA” means any power purchase agreement that is assigned (i) by Purchaser to Issuer pursuant to a Purchaser Assignment Agreement and (ii) by Issuer to J. Aron pursuant to an Issuer Assignment Agreement in accordance with the terms of this Agreement. “A ssigned Prepay Quantity” for any Assigned PPA or Assignment Schedule has the meaning specified in Exhibit F.
“Assigned Prepay Value” means, for any Month and each Assignment Schedule, the Assigned Prepay Quantity specified in such Assignment Schedule for such Month multiplied by the APC Contract Price specified therein.
“A ssigned Product ” means , as applicable, PCC1 Product, Long- Term PCC1 Product, Assigned Energy, Assigned RECs and any other Product included on an Assignment Schedule, subject to the limitations for such other Product set forth in Exhibit F. “Assigned Quantity” means, with respect to each Assigned PPA and each Month during the Assignment Period therefor, the quantity of Assigned Energy delivered pursuant to such Assigned PPA consistent with the terms of the applicable Assigned Rights and Obligations in connection with the Assigned Product during such Month. “A ssigned RECs” means any RECs associated with PCC1 Product or Long-Term PCC1 Product to be delivered to J. Aron or any successor thereto pursuant to any Assigned Rights and Obligations.
“Assigned Rights and Obligations” has the meaning specified in Section 6.1. “Assignment Period” for any Assigned Rights and Obligations and Assigned PPA has the meaning specified in the applicable Issuer Assignment Agreement. “A ssignment Schedule” has the meaning specified in Exhibit F. “Available Discount Percentage” has t he meaning specified in the Re -Pricing Agreement. For the avoidance of doubt, the “Available Discount Percentage” under the Re-Pricing Agreement includes the Monthly Discount Percentage, as well as additional discounting expected to be made available through the Annual Refund.
“B alancing Authority” has the meaning specified in the CAISO Tariff.
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“Base Delivery Point” means (i) the CAISO delivery point set forth in Exhibit A-1 (the “Primary Delivery Point”) or (ii) any other CAISO delivery point (an “ Alternate Delivery Point”) that has been mutually agreed by Issuer and Prepay LLC under the terms of the Master Power Sale Agreement and by Purchaser hereunder.
“B ase Product” means Firm (LD) Energy delivered to the Base Delivery Point . “Base Quantity” means, with respect to each Delivery Hour during the Delivery Period, the Base Unadjusted Quantity for such Delivery Hour less the Base Quantity Reduction for such Delivery Hour, each as set forth on Exhibit A-1, as Exhibit A-1 may be revised pursuant to Article VI; provided that, for the avoidance of doubt, there shall be no Base Quanti ties under this Agreement following the end of the Delivery Period. “B ase Quantity Reduction” means, with respect to each Delivery Hour during the Delivery Period, the “Base Quantity Reduction” of Base Product (in MWh) set forth for such Delivery Hour on Exhibit A-1, as Exhibit A-1 may be revised pursuant to Article VI. “Base Unadjusted Quantity” means, with respect to each Delivery Hour during the Delivery Period, the “Base Unadjusted Q uantity” (in MWh) set forth for such Delivery Hour on Exhibit A-1.
“Bond Closing Date” means the date on which Bonds are first issued pursuant to the Bond Indenture.
“B ond Indenture ” means (i) the Trust Indenture to be entered into prior to the commencement of the Delivery Period between Issuer and the Trustee, and (ii) any trust indenture entered into in connection with the commencement of any Interest Rate Period after the initial Interest Rate Period between Issuer and the Trustee containing substantially the same terms as the indenture described in clause (i) and which is intended to replace the indenture described in clause (i) as of the commencement of such Interest Rate Period. “B
onds ” means the bonds issued pursuant to the Bond Indenture. “Business Day” means any day other than (i) a Saturday or Sunday, (ii) a Federal Reserve Bank Holiday, (iii) any other day on which commercial banks generally in either New York, New York or the State of California are authorized or required by Law to close, or (iv) any day excluded from “Business Day” as therein defined, pursuant to the Bond Indenture. “C AISO ” means California Independent System Operator or its successor. “CAISO Tariff” means CAISO’s FERC-approved tariff, as modified, amended or supplemented from time to time.
“C alculation Agent ” has the meaning specified in the Re-Pricing Agreement. “California Long- Term Contracting Requirements ” means the long -term contracting requirement set forth in the Clean Energy and Pollution Reduction Act of 2015 (SB
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350), as may be modified by subsequent decision of the California Energy Commission or by other Law.
“CEC” means California’s State Energy Resources Conservation and Development Commission, also known as the California Energy Commission, and any successor agency thereto. “Claiming Party” has the meaning specified in Section 11.1. “Claims” means all claims or actions, threatened or filed, that directly or indirectly relate to the indemnities provided herein, and the resulting losses, damages, expenses, attorneys’ fees, experts’ fees, and court costs, whether incurred by settlement or otherwise, and whether such claims or actions are threatened or filed prior to or after the termination of this Agreement. “C
lean Energy Project” has the meaning specified in the recitals . “Code” means the Internal Revenue Code of 1986, as amended. “Commercially Reasonable” or “Commercially Reasonable Efforts ” means, with respect to any purchase or sale or other action required to be made, attempted or taken by a Party under this Agreement , such efforts as a reasonably prudent Person would undertake for the protection of its own interest under the conditions affecting such purchase or sale or other action, including without limitation, the amount of notice of the need to take such action, the duration and type of the purchase or sale or other action, the competitive environment in which such purchase or sale or other action occurs, and the risk to the Party required to take such action. “C
ommodity Reference Price” means either (i ) the Day-Ahead Market Price, or (ii) the Real-Time Market Price, as applicable.
“C ontract Price ” means (i) with respect to the Base Product and any Delivery Hour, (A) the Day-Ahead Market Price for such Delivery Hour at the Base Delivery Point less (B) the product of the Fixed Price multiplied by the Monthly Discount Percentage ; (ii) with respect to Assigned Discounted Product delivered pursuant to an Assigned PPA, (A) the applicable A PC Contract Price(s) thereunder multiplied by (B) the result of 100% less the Monthly Discount Percentage; and (iii) with respect to Assigned PAYGO Product delivered pursuant to an Assigned PPA, the APC Contract Price(s) thereunder.
“D ay ” means each period of 24 consecutive Hours commencing at the Hour ending at 01:00 (LPT) through the Hour ending at 24:00 (LPT).
“D ay -Ahead Market Price” has the meaning specified on Exhibit A -1 for each Delivery Point.
“D efault Rate” means, as of any date of determination, the lesser of (a) the sum of (i) the rate of interest per annum quoted in The Wall Street Journal (Eastern Edition ) under the “Money Rates” section as the “Prime Rate” for such date of determination, plus (ii) two percent per annum, or (b) if a lower maximum rate is imposed by applicable Law, such maximum lawful rate.
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“Delivery Hour” has the meaning specified in Exhibit A-1. “Delivery Period” has the meaning specified in Exhibit H. “Delivery Point” means the Base Delivery Point or an Assigned Delivery Point, as applicable.
“Disqualified Sale Proceeds” has the meaning specified in Section 7.6. “Disqualified Sale Units” has the meaning specified in Section 7.6. “Electricity Sale and Service Agreement” has the meaning specified in the Master Power Supply Agreement.
“E ligible Renewable Energy Resource” has the meaning set forth in California Public Utilities Code Section 399.12 as such code provision is amended or supplemented from time to time.
“E nergy ” means three- phase, 60- cycle alternating current electric energy, expressed in megawatt hours.
“EPS ” means California’s Emissions Performance Standards, as set forth in Sections 8340 and 8341 of the California Public Utilities Code, as implemented and amended from time to time, and any successor Law.
“E PS Compliant Energy” means Energy that Purchaser can contract for and purchase in compliance with EPS requirements that are applicable to Purchaser. “E PS Energy Period” means any Assignment Period or J. Aron EPS Energy Period. “Execution Date” has the meaning specified in the preamble. “Federal Tax Certificate” means the executed Federal Tax Certificate delivered by Purchaser in the form attached as Exhibit D.
“FERC” means the Federal Energy Regulatory Commission or any successor thereto.
“F irm (LD)” means, with respect to a Party’s obligation to sell and deliver or purchase and receive, that such Party’s liability for the failure to meet such obligation shall only be excused to the extent that, and for the period during which, such performance is prevented by Force Majeure, and that in the absence of Force Majeure, the Party to which performance of such obligation is owed shall be entitled to receive from the Party which failed to deliver/receive an amount determined pursuant to Article IV.
“Fixed Price” means $[____]/MWh, which is the fixed price under the Buyer Swap (as defined in the Master Power Supply Agreement).
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“Force Majeure” means an event or circumstance which prevents one Party from performing its obligations under this Agreement, which event or circumstance was not anticipated as of the date this Agreement was executed, which is not within the reasonable control of, or the result of the negligence of, the Claiming Party , and which, by the exercise of due diligence, the Claiming Party is unable to overcome or avoid or cause to be avoided; provided that, for the avoidance of doubt, (x) the declaration of “Force Majeure” by an APC Party under an Assigned PPA or (y) an APC Party otherwise is unable to deliver any portion of the Assigned Prepay Quantity in respect of its Assigned PPA due to an event that would be considered Force Majeure under this Agreement if it affecte d Issuer directly, in each case, shall constitute Force Majeure hereunder. Force Majeure shall include, provided the criteria in the first sentence are met, riot, insurrection, war, labor dispute, natural disaster, epidemic, vandalism, terrorism, sabotage. Force Majeure shall not be based on (i) the loss of Purchaser ’s markets; (ii) Purchaser ’s inability economically to use or resell the Product purchased hereunder; (iii) the delay, loss or failure of Issuer’s supply; or (iv) Issuer’s ability to sell the Product at a higher price. Neither Party may raise a claim of Force Majeure based in whole or in part on curtailment by a Transmission Provider unless (x) such Party has contracted for firm transmission with a Transmission Pr ovider for the Product to be delivered to or received at the applicable Delivery Point and (y) such curtailment is due to “force majeure” or “uncontrollable force” or a similar term as defined under the Transmission Provider’s tariff; provided, however, that existence of the foregoing factors shall not be sufficient to conclusively or presumptively prove the existence of a Force Majeure absent a showing of other facts and circumstances which in the aggregate with such factors establish that a Force Majeure as defined in the first sentence hereof has occurred. Force Majeure invoked by Prepay LLC under the Master Power Supply Agreement shall constitute Force Majeure hereunder in respect of Issuer to the extent the conditions set forth above have been satisfied with respect to Prepay LLC . To the extent that an Issuer Assignment Agreement is terminated early, such termination shall constitute Force Majeure with respect to Issuer hereunder until the effectiveness of the updates to Exhibit A-1 or Exhibit A-2, as applicable, pursuant to Section 6.2, provided that,
if a Purchaser Assignment Agreement remains in effect with respect to the relevant Assigned PPA, Issuer shall continue to deliver or make available to Purchaser the products delivered or made available by the APC Party under such Assigned PPA.
“G
overnment Agency” means the United States of America, any state thereof, any municipality, or any local jurisdiction, or any political subdivision of any of the foregoing, including, but not limited to , courts, administrative bodies, departments, commissions, boards, bureaus, agencies, or instrumentalities.
“G
overnmental Approval ” means any authorization, consent, approval, license, ruling, permit, exemption, variance, order, judgment, registration, filing, giving of notice to, decree, declaration of or regulation by any Government Agency relating to the valid execution, delivery or performance of this Agreement or the consummation of any of the transactions contemplated hereby.
“H
our ” means the 60 -minute period commencing at 00:00 ( LPT) on first Day of the Delivery Period and ending at 01:00 ( LPT) on the first Day of the Delivery Period, and each 60-minute interval thereafter. The Term “Hourly” shall be construed accordingly.
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“Initial Assigned Rights and Obligations ” means the Assigned Rights and Obligations that have been assigned by Issuer to J. Aron concurrently with the execution of this Agreement as set forth in Exhibit A-2 hereto.
“Initial Reset Period” has the meaning specified in Exhibit H. “Interest Rate Period” has the meaning specified in the Bond Indenture. “Issuer” has the meaning specified in the preamble.
“Issuer Assignment Agreement” means, for any Assigned Rights and Obligations, an agreement among Issuer, J. Aron and the A PC Party , approved by Purchaser, in the form attached hereto as Annex I to Exhibit F (with such changes thereto as may be mutually agreed upon by Purchaser, J. Aron, the APC Party, and Issuer, each in its sole discretion). “Issuer Default” has the meaning specified in Section 17.1. “ISTs” has the meaning specified in Section 5.1(a).
“J. Aron” means J. Aron & Company LLC, a New York limited liability company, and its permitted successors and assigns under an Issuer Assignment Agreement. “J. Aron EPS Energy Period” has the meaning specified in Section 6.1(c). “Law” means any statute, law, rule or regulation or any written judicial or administrative decision, ruling or interpretation with respect thereto or thereof having the effect of the foregoing enacted, promulgated, or issued by a Government Agency whether in effect as of the Execution Date or at any time during the term of this Agreement. “L
ong- Term PCC1 Product” means bundled renewable energy and RECs meeting the requirements of Portfolio Content Category 1, and the California Long- Term Contract ing Requirements, to be delivered to J. Aron or any successor thereto pursuant to any Assigned Rights and Obligations.
“LP T” means the local prevailing time then in effect in the State of California. “Master Power Supply Agreement” has the meaning specified in the recitals. “Minimum Discount Percentage” has the meaning specified in Exhibit H. “Month” means a period beginning on the first Day of a calendar month and ending immediately prior to the commencement of the first Day of the next calendar month. “M onthly Discount Percentage ” has the meaning specified in Exhibit H. “Municipal Utility ” means any Person that (i) is a “governmental person ” as defined in the implementing regulations under Section 141 of the Code and any successor
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provision, (ii) owns either or both a gas distribution utility or an electric distribution utility (or provides natural gas or electricity at wholesale to, or that is sold to entities that provide natural gas or electricity at wholesale to, governmental Persons that own such utilities), and (iii) agrees in writing to use the gas or electricity purchased by it (or cause such gas or electricity to be used) for a qualifying use as defined in U.S. Treas. Reg. § 1.148-1(e)(2)(iii). “MWh” means megawatt-hour.
“Non-Priority Products” means any Products that are not Priority Products. “Participant Custodial Agreement” means that certain Custodial Agreement, dated as of the date hereof, by and among Purchaser, J. Aron, and the Participant Custodian. “P articipant Custodian ” means U.S. Bank Trust Company, National Association, a national banking association.
“P articipant Gross Payment ” has the meaning specified in the Participant Custodial Agreement.
“P arty” has the meaning specified in the preamble .
“PCC1 Product ” means bundled renewable energy and RECs meeting the requirements of Portfolio Content Category 1 to be delivered to J. Aron or any successor thereto pursuant to any Assigned Rights and Obligations.
“P erson ” means any individual, corporation, partnership, joint venture, trust, unincorporated organization, or Government Agency.
“P ortfolio Content Category 1” or “ PCC1” means any Renewable Energy Credit associated with the generation of electricity from an Eligible Renewable Energy Resource consisting of the portfolio content set forth in the California Code of Regulations, Title 20, Section 3203, as may be amended from time to time or as further defined or supplemented by Law. “Potential Remarketing Event” has the meaning specified in Section 3.4(b). “Primary Delivery Point” has the meaning specified in Section 5.1(a). “Prepay LLC” has the meaning stated in the recitals.
“Priority Products” means the Base Quantity and Assigned Products to be purchased by Purchaser under this Agreement , together with Products that (i) Purchaser is obligated to take under a long- term agreement, which Products either have been purchased by Purchaser or a joint action agency pursuant to a long-term prepaid power purchase agreement using the proceeds of bonds, notes, or other obligations, the interest on which is excluded from income for federal income tax purposes, or (ii) with respect to Energy, Energy that is generated using capacity that was constructed using the proceeds of bonds, notes, or other obligations, the interest on which is excluded from income for federal income tax purposes (provided that, for the
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avoidance of doubt, Priority Products shall not include Energy that is generated using capacity that was wholly or partially financed through the monetization of renewable tax credits, whether such monetization is accomplished through a tax equity investment or otherwise). “Product” means Energy and, to the extent included on an Assignment Schedule, associated RECs or other products related to the foregoing; provided that the inclusion of any Product on an Assignment Schedule is subject to the limitation set forth in Exhibit F. “Purchaser” has the meaning specified in the preamble.
“Purchaser Assignment Agreement” has the meaning specified in Exhibit F. “Purchaser Default” has the meaning specified in Section 17.2. “Qualifying Use Requirements” means, with respect to any Product delivered under this Agreement, such Product is used (i) for a “qualifying use” as defined in U.S. Treas.
Reg. § 1.148-1(e)(2)(iii), (ii) in a manner that will not result in any “private business use” within the meaning of Section 141 of the Code, and (iii) in a manner that is consistent with the Federal Tax Certificate attached as Exhibit D.
“Re-Pricing Agreement” means the Re -Pricing Agreement, dated as of the Bond Closing Date (as defined in the Bond Indenture), by and between Prepay LLC and Issuer. “R eal -Time Market Price” has the meaning specified on Exhibit A -1 for each Delivery Point.
“R emarketing Election Deadline” means, for any Reset Period, the last date and time by which the Purchaser may provide a Remarketing Election Notice as set forth in the applicable Reset Period Notice.
“Remarketing Election Notice” has the meaning specified in Section 3.4(b). “Renewable Energy Credit” or “REC” means a certificate of proof associated with the generation of electricity from an eligible renewable energy resource, which certificate is issued through the accounting system established by the CEC pursuant to RPS Law, evidencing that one (1) MWh of ener gy was generated and delivered from such eligible renewable energy resource and the “bucket” to which such energy pertains. Such certificate is a tradable environmental commodity (also known as a “green tag”) with which the owner of the REC can prove that it has purchased renewable energy.
“R
eplacement Assigned Rights and Obligations ” means any Assigned Rights and Obligations other than the Initial Assigned Rights and Obligations. “R eplacement Price ” means, with respect to any Shortfall Quantity of Base Quantities, the price at which Purchaser, acting in a Commercially Reasonable manner, purchases at the applicable Delivery Point Replacement Product for such Shortfall Quantity, plus (i) costs reasonably incurred by Purchaser in purchasing Replacement Product, and (ii) additional
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transmission charges, if any, reasonably incurred by Purchaser to the applicable Delivery Point, or at Purchaser’s option, the market price at the Delivery Point for such Product not delivered as determined by Purchaser in a Commercially Reasonable manner. The Replacement Price for any Shortfall Quantity shall not include any administrative or other internal costs incurred by Purchaser and shall be limited to a price that is Commercially Reasonable with respect to the timing and manner of purchase . In no e vent shall the Replacement Price include any penalties, ratcheted demand or similar charges, nor shall Purchaser be required to utilize or change its utilization of its owned or controlled assets or market positions to minimize Issuer’s liability. “Replacement Product” means any Energy purchased by Purchaser to replace any Shortfall Quantity at the Delivery Point where such Shortfall Quantity occurred ; provided that such Energy is purchased for delivery in the Delivery Hour to which such Shortfall Quantity relates.
“R eset Period” means each “Reset Period” under the Re -Pricing Agreement. “Reset Period Notice” has the meaning specified in Section 3.4(a). “RPS Law ” means the California Renewable Energy Resources Act, as implemented and amended from time to time, and any successor Law. “S chedule ”, “Scheduled” or “ Scheduling” means the actions of Issuer, Purchaser and/or their designated representatives, including each Party ’s Transmission Providers , if applicable, of notifying, requesting and confirming to each other the quantity and type of Product to be delivered during any given portion of the Delivery Period at a specified Delivery Point. “Shortfall Quantity” has the meaning specified in Section 4.1(a). “Transmission Provider” means any entity or entities transmitting or transporting the Product on behalf of Issuer or Purchaser to or from the Delivery Point. “T rustee ” means U.S. Bank Trust Company, National Association, a national banking association, and its successors as trustee under the Bond Indenture. “U tility Revenues ” means all charges received for, and all other income and receipts derived by Purchaser from, the operation of Purchaser’s utility system, or arising from Purchaser’s utility system, including income derived from the sale or use of electric energy generated, transmitted, or distributed by any facilities of Purchaser’s utility system, together with any receipts derived from the sale of any property pertaining to Purchaser’s utility system or incidental to the operation of Purchaser’s utility system or from any services performed by Purchaser in connection with or incidental to Purchaser’s utility system, or from any other source whatsoever directly or indirectly derived from Purchaser’s utility system, but exclusive in every case of any moneys derived from the levy or collection of taxes upon any taxable property within the jurisdictional boundaries of Purchaser.
“Voided Remarketing Election Notice” has the meaning specified in Section 3.4(b).
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“Western EIM” has the meaning ascribed to “Energy Imbalance Market (EIM)” under the CAISO Tariff.
“W REGIS ” means the Western Renewable Energy Generation Information System or its successor.
Section 1.2 D efinitions; Interpretation . References to “Articles ,” “ Sections,” “Schedules” and “Exhibits” shall be to Articles, Sections, Schedules and Exhibits, as the case may be, of this Agreement unless otherwise specifically provided. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not nonlimiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest scope of such general statement, ter m or matter.
Except where expressly provided otherwise, any reference herein to any agreement or document includes all amendments, supplements or restatements to and of such agreement or document as may occur from time to time in accordance with its terms and the terms hereof, and any reference to a party to any such agreement includes all successors and assigns of such party thereunder permitted by the terms hereof and thereof.
ARTICLE II.
DELIVERY PERIOD; NATURE OF CLEAN ENERGY PROJECT; CONDITION
PRECEDENT
Section 2.1 Delivery Period. Subject to Section 2.2 , delivery of Product by Issuer to Purchaser shall commence at the beginning of the Delivery Period and, except for any Reset Period for which a Remarketing Election Notice is in effect as provided in Section 3.4(b), shall continue
throughout the Delivery Period.
Section 2.2 C ondition Precedent . Notwithstanding anything to the contrary herein, commencement of deliveries and the rights and obligations of Issuer and Purchaser hereunder are subject to the condition precedent that Issuer shall have entered into the Master Power Supply Agreement and shall have issued the Bonds.
Section 2.3 P ledge of this Agreement. Purchaser acknowledges and agrees that Issuer will pledge its right, title and interest under this Agreement during the Delivery Period and the revenues to be received under this Agreement during the Delivery Period to secure Issuer’s obligations under the Bond Indenture.
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ARTICLE III.
SALE AND PURCHASE; PRICING
Section 3.1 Sale and Purchase of Product . Issuer shall sell and deliver or cause to be delivered to Purchaser , and Purchaser shall purchase and receive from Issuer, the applicable Product in the quantities, at the times and places, subject to the terms and conditions set forth in this Agreement. The quantities of Product to be sold and delivered and purchased and received pursuant to the terms and conditions set forth in this Agreement shall be equal to (a) the Base Quantity, if any, for each Delivery Hour and (b) the Assigned Products delivered to Issuer in each Month of the Delivery Period pursuant to (i) the Master Power Supply Agreement and (ii) the Purchaser Assignment Agreements. The Base Quantity shall be delivered and received at the Base Delivery Point, and the Assigned Quantity to be delivered in accordance with each Assignment Agreement shall be delivered and received at the Assigned Delivery Point specified in such Assignment Agreement.
Section 3.2 P
urchaser Payments.
(a) For each Month for which an EPS Energy Period is in effect during the Delivery Period:
(i) Purchaser shall pay Issuer the sum, for all Assigned PPAs, of the product of the Assigned Prepay Quantities actually delivered pursuant thereto in such Month and the applicable Contract Price therefor; (ii) Purchaser shall pay Issuer the product, for each Assigned PPA, of (A) the Assigned PAYGO Product delivered pursuant to such Assigned PPA and received by Purchaser in such Month and (B) the Contract Price for such Assigned PAYGO Product; provided that, pursuant to the terms of the Participant Custodial Agreement, Purchaser shall owe a separate Participant Gross Payment for each Assigned PPA consistent with the terms of the Participant Custodial Agreement, and, upon satisfying its obligations under the Par ticipant Custodial Agreement in respect of such amount (after taking into consideration any PPA Seller Payment Obligation (as such term is defined in the Participant Custodial Agreement) credited to Participant in respect thereof), any portion of such amount attributable to Assigned PAYGO Product shall be deemed to be paid by Purchaser to the applicable APC Party on behalf of J. Aron and shall satisfy the obligations of the respective parties under each of the Electricity Sale and Service Agreement, the Master Power Supply Agreement, and this Agreement to pay for such Assigned PAYGO Product; and
(iii) to the extent that Base Quantities are delivered hereunder in any Delivery Hour in any Month during the Delivery Period, Purchaser shall pay Issuer the applicable Contract Price therefor multiplied by the Base Quantities actually delivered.
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(b) The Contract Price for Assigned Energy is inclusive of any amounts due in respect of other Assigned Products.
(c) With respect to any Product that is (i) assigned by Purchaser to Issuer under a Purchaser Assignment Agreement and (ii) not included in the Assigned Products under a corresponding Issuer Assignment Agreement (such P roduct, the “ Non-Prepay Products ”), the following terms shall apply:
(i) such Non-Prepay Products shall be redelivered or made available by Issuer to Purchaser pursuant to this Agreement while such Purchaser Assignment Agreement is in effect; and
(ii) Purchaser shall be obligated to pay Issuer for any amounts due under the Assigned PPA for such Non- Prepay Products, provided that Purchaser’s payment of amounts due under Section 3.2(a)(ii) or Section 3.2(b), as applicable, shall satisfy such obligation.
Section 3.3 A nnual Refund. In addition to any Monthly Discount Percentage applied to Energy Scheduled hereunder, Issuer shall credit such Annual Refund to Purchaser as may be available for distribution by Issuer pursuant to Section 5.12(b) of the Bond Indenture during the Delivery Period, subject to the provisions of this
Section 3.3. Such Annual Refund, if any, shall
be credited to the next amount due from Purchaser following the release of funds for such purpose to Issuer under the terms of the Bond Indenture. In determining the amount of such Annual Refund, if any, to be credited to Purchaser, Issuer may reserve such funds (i) as may be required under the terms of the Bond Indenture or (ii) as it deems reasonably necessary and appropriate, including but not limited to amounts required (a) to fund or maintain the Minimum Discount Percentage for any future Reset Period, (b) to fund or maintain any rate stabilization or working capital reserve, (c) to reserve or account for unfunded liabilities and expenses, including future sinking fund or other principal amortization of the Bonds, or (d) for other costs of the Clean Energy Project.
Section 3.4 R
eset Period Remarketing.
(a) Reset Period Notice. For each Reset Period , Issuer shall provide to Purchaser, at least ten (10) days prior to the Remarketing Election Deadline , written notice (a “Reset Period Notice”) setting forth (i) the duration of such Reset Period , (ii) the estimated Available Discount Percentage for such Reset Period, and (iii) the applicable Remarketing Election Deadline. Issuer may thereafter update such notice at any time prior to the Remarketing Election Deadline and in any such update may extend the Remarketing Election Deadline in its sole discretion.
(b) R emarketing Election . If the Reset Period Notice (or any update thereto) for any Reset Period indicates that the estimated Available Discount Percentage specified in such notice is not at least equal to the Minimum Discount Percentage for such Reset Period, then: (i) a “Potential Remarketing Event” shall be deemed to exist, and (ii) Purchaser may, not later than the Remarketing Election Deadline, issue a written notice in the form attached hereto as Exhibit C (a
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“Remarketing Election Notice ”) to Issuer, Prepay LLC and the Trustee electing for all Base Quantities with respect to such Reset Period to be remarketed; provided, however, if the actual Available Discount Percentage, as finally determined under the Re-Pricing Agreement, is equal to or greater than the Minimum Discount Percentage, then Issuer may, in its sole discretion, elect by written notice (a “Voided Remarketing Election Notice”) to Purchaser to treat such Remarketing Election Notice as void. If Purchaser issues a valid Remarketing Election Notice (other than a Voided Remarketing Election Notice) in accordance with this Section 3.4(b) for any Reset Period, then (x) Purchaser shall have no rights or obligations to pay for or receive any Product hereunder during such Reset Period or to receive any Annual Refund attributable to such Reset Period and (y) Issuer shall exercise its right to terminate any Issuer Assignment Agreements and Purchaser Assignment Agreements effective as of the end of the Month immediately preceding any Reset Period for which Purchaser has issued a valid Remarketing Election Notice. (c) F
inal Determination of Available Discount Percentage. The Parties acknowledge and agree that the final Available Discount Percentage for any Reset Period following the Initial Reset Period will be determined on the Re-pricing Date (as defined in the Re- Pricing Agreement) for such Reset Period, and that such Available Discount Percentage may differ from the estimate or estimates of such Available Discount Percentage last provided to Purchaser prior to the Remarketing Election Deadline for such Reset Period ; provided that the Available Discount Percentage for any Reset Period will not be less than the lower of (i) the last estimated Available Discount Percentage set forth in the Reset Period Notice for such Reset Period (or any update thereof) sent to Purchaser by Issuer and (ii) the Minimum Discount Percentage for Reset Period.
(d) O
bligations Following a Remarketing Election . Notwithstanding the issuance of any Remarketing Election Notice for a Reset Period , (i) Purchaser will remain obligated to purchase the Base Quantities (and any Assigned Products assigned pursuant to Issuer Assignment Agreements) hereunder for each subsequent Reset Period, unless Purchaser issues a new valid Remarketing Election Notice (other than a Voided Remarketing Election Notice) for such subsequent Reset Period in accordance with this
Section 3.4; and (ii) Purchaser shall not make
any new commitment to purchase Priority Products during such Reset Period if Purchaser reasonably expects such commitment to cause, during any portion of the Delivery Period after such Reset Period, Purchaser’s aggregate obligations to purchase Priority Products (including its obligation to purchase Priority Products hereunder) to exceed Purchaser’s expected aggregate requirements for Products that will be used (A ) for a “qualifying use” as defined in U.S. T reas.
Reg. § 1.148- 1(e)(2)(iii) and (B ) in a manner that will not result in any “private business use” within the meaning of Section 141 of the Code . Unless Purchaser issues a new Remarketing Election Notice (other than a Voided Remarketing Election Notice) for any subsequent Reset Period in accordance with this
Section 3.4, Purchaser will cooperate with J. Aron in good faith and exercise Commercially Reasonable Efforts, in each case pursuant to Section 6.1 hereof, to locate EPS Compliant Energy for redelivery hereunder in any such Reset Period.
Section 3.5 L imited Obligation to Take Base Quantities . Notwithstanding anything to the contrary in this Agreement, Purchaser shall not be required to purchase and receive any Base Quantities hereunder, and Issuer, with respect to any Base Quantities that otherwise would be
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delivered hereunder, shall cause Prepay LLC to remarket such Base Quantities pursuant to the provisions of Exhibit C to the Master Power Supply Agreement.
ARTICLE IV.
FAILURE TO SCHEDULE PRODUCT
Section 4.1 Issuer’s Failure to Schedule Base Quantity (Not Due to Force Majeure). (a) Shortfall Quantity. If, for any Delivery Hour during the Delivery Period, Issuer breaches its obligation to Schedule or deliver all or any portion of the Base Quantity, after giving effect to reductions for Assigned Energy in accordance with Article VI , at any Delivery Point pursuant to the terms of this Agreement and such breach is not excused by the provisions of Article XI, then the portion of the Base Quantity that Issuer failed to Schedule or deliver shall be a “Shortfall Quantity”.
(b) Issuer Cover Damage Payments. Issuer shall pay to Purchaser, for each Shortfall Quantity that Issuer fails to Schedule or deliver in a Delivery Hour at a Delivery Point, the result determined by the following formula:
P = Q x (RP - CP + AF)
Where:
P = The amount payable by Issuer under this Section 4.1(b) for such Shortfall Quantity, Delivery Hour and Delivery Point;
Q = Such Shortfall Quantity;
RP = The Replacement Price for such Shortfall Quantity, Delivery Hour and Delivery Point;
CP = The Contract Price that would have applied to such Shortfall Quantity, Delivery Hour and Delivery Point; and
AF = The Administrative Fee.
(c) Purchaser Obligation to Mitigate . Purchaser shall exercise Commercially Reasonable Efforts to mitigate Issuer’s damages paid by Issuer hereunder.
Section 4.2 P urchaser’s Failure to Schedule or Receive Base Quantities (Not Due to Force Majeure). If, for any Delivery Hour during the Delivery Period, Purchaser breaches its obligation to Schedule or receive all or any portion of the Base Quantity at any Delivery Point pursuant to the terms of this Agreement and such breach is not excused by the provisions of Article XI, then Purchaser shall remain obligated to pay Issuer the Contract Price for such Base Quantity.
Issuer shall credit to Purchaser’s account any net revenues Issuer receives from Prepay LLC under
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the Master Power Supply Agreement in connection with the ultimate sale of any such Product by Prepay LLC to other Municipal Utilities, up to the Contract Price.
Section 4.3 Assigned Product. Notwithstanding anything herein to the contrary, neither Purchaser nor Issuer shall have any liability or other obligation to one another for any failure to Schedule, receive, or deliver Assigned Product, except as expressly set forth in Article VI.
Section 4.4 Sole Remedies . Except with respect to termination of this Agreement pursuant to Article XVII, the remedies set forth in this Article IV shall be each Party’s sole and exclusive remedies against the other Party for any failure by the other Party to Schedule, deliver or receive Product, as applicable, pursuant to this Agreement.
ARTICLE V.
DELIVERY POINTS; SCHEDULING
Section 5.1 Delivery Points.
(a) Base Delivery Points . All Base Product delivered under this Agreement shall be Scheduled for delivery and receipt at (i) the Delivery Point set forth in Exhibit A -1 (the “Primary Delivery Point”) or (ii) any other point (an “ Alternate Delivery Point”) that has been mutually agreed by Issuer, Purchaser and Prepay LLC (the Primary Delivery Point or, to the extent specified, any Alternate Delivery Point being the “Base Delivery Point”). Delivery of Energy to Purchaser at the Primary Delivery Point shall be facilitated through submission of Inter-SC Trades, as defined in the CAISO Tariff (“ISTs”). Purchaser shall designate a scheduling coordinator in the CAISO market for this purpose as specified in Exhibit G. (b) Alternate Base Market Prices. The Day-Ahead Market Price and Real-Time Market Price for each Alternate Delivery Point, as applicable, shall be the price mutually agreed and identified by the Parties, or if no such price is identified for such Alternate Delivery Point, the Day-Ahead Market Price and Real-Time Market Price, as applicable, specified on Exhibit A-1 for the Primary Delivery Point from which quantities are being shifted to such Alternate Delivery Point.
(c) A
ssigned Energy Delivery Points. Assigned Energy delivered under this Agreement shall be Scheduled for delivery and receipt at the applicable Assigned Delivery Point specified in the applicable Assigned PPA. All other Assigned Product shall be delivered consistent with the terms of the applicable Issuer Assignment Agreement Section 5.2 T ransmission and Scheduling. Issuer shall Schedule or arrange for Scheduling services with CAISO in accordance with the CAISO Tariff, to deliver the Base Product to the Base Delivery Point . Purchaser shall Schedule or arrange for Scheduling services with CAISO in accordance with CAISO Tariff, to receive the Base Product at the Base Delivery Point.
If Prepay LLC Schedules or arranges for Scheduling services, to deliver Base Product to the Base Delivery Point, then Issuer’s obligations under this Section shall be relieved pro tanto. Scheduling of Assigned Energy shall be in accordance with the applicable Assignment Schedule.
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Section 5.3 Title and Risk of Loss. Title to and risk of loss of the Product delivered under this Agreement shall pass from Issuer to Purchaser at the applicable Delivery Point. The transfer of title and risk of loss for all Assigned Product shall be in accordance with the applicable Issuer Assignment Agreement and Purchaser Assignment Agreement; provide d that all Issuer Assignment Agreements and Purchaser Assignment Agreements shall provide for the transfer of Renewable Energy Credits in accordance with WREGIS. Subject to Section 18.1, each Party shall indemnify, defend and hold harmless the other Party from and against any Claims made by a third party arising from or out of any event, circumstance, act or incident related to the Product delivered hereunder first occurring or existing during the period when control and title to Base Product or Assigned Product is vested in the indem nifying Party as provided in this Section; provided that, notwithstanding the foregoing, (a) Issuer shall have no obligation to indemnify, defend or hold harmless Purchaser for any such Claims relating to replacement costs, cover damages or similar liabilities that are payable to any Person because of Purchaser ’s failure to deliver any Product to such Person and (b) no obligation to indemnify, defend or hold harmless shall supplant or control the provisions of this Agreement relating to Force Majeure. Notwithstanding anything to the contrary herein, no Party shall have any obligation to indemnify, defend or hold harmless the other Party in respect of any Claims relating to any Assigned Product.
Section 5.4 C
ommunications Protocol. With respect to the Scheduling and delivery of Base Quantities, Issuer and Purchaser shall comply with the communications protocol set forth in Exhibit G . Scheduling and transmission of Assigned Energy shall be in accordance with the applicable Issuer Assignment Agreement pursuant to which the Project Participant shall act as the scheduling coordinator.
Section 5.5 D eliveries within CAISO or another Balancing Authority. The Parties acknowledge that Energy delivered by Issuer at a Delivery Point within CAISO or another Balancing Authority (including a Balancing Authority operating within the Western EIM) will be delivered in accordance with the CAISO Tariff and rules of the Balancing Authority as applicable.
Scheduling such Energy in accordance with the requirements of the applicable Product into the applicable Balancing Authority shall constitute delivery of such Product to Purchaser hereunder, provided that any associated Renewable Energy Credits and other Assigned Product are also delivered to Purchaser.
Section 5.6 A
ssigned Products. Notwithstanding anything to the contrary herein, except as provided in Section 6 .3, Issuer shall have no liability under this Article V with respect to any Assigned Products.
ARTICLE VI.
ASSIGNMENT OF POWER PURCHASE AGREEMENTS
Section 6.1 Assignments Generally.
(a) Initial Assigned Rights and Obligations. Concurrently with the execution of this Agreement, Purchaser has assigned the Initial Assigned Rights
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and Obligations to Issuer, and Issuer has assigned the Initial Rights and Obligations to J. Aron.
(b) Assignments of Replacement Assigned Rights and Obligations .
Commencing one year prior to the expiration of any EPS Energy Period or otherwise immediately upon the early termination or anticipated early termination of a EPS Energy Period, Purchaser shall exercise Commercially Reasonable Efforts and cooperate with J. Aron in good faith to assign a portion of Purchaser ’s rights and obligations (together with the Initial Assigned Rights and Obligations, the “Assigned Rights and Obligations”) under one or more power purchase agreements (each such agreement , a n “Assignable Power Contract ”) pursuant to which Purchaser is purchasing EPS Compliant Energy, RECs and other products that may be assigned pursuant to Exhibit F . The Parties recognize that, in the case of such an assignment, J. Aron will be obligated to sell and deliver Assigned Product it receives under all Assigned Rights and Obligations to Prepay LLC under the terms of the Electricity Sale and Service Agreement, and Prepay LLC will be obligated to deliver such Product to Issuer under the terms of the Master Power Supply Agreement. To be effective hereunder, any assignment of Replacement Assigned Rights and Obligations must be proposed, agreed and consented to in accordance with Exhibit F and the Master Power Supply Agreement.
(c) J. Aron Procurement of EPS Compliant Energy. Under certain circumstances specified in [Section 6.1(c)] of the Electricity Sale and Service Agreement, J. Aron is obligated to exercise Commercially Reasonable Efforts to obtain EPS Compliant Energy for ultimate redelivery to Purchaser hereunder, and, in such case, Purchaser shall cooperate in good faith with J. Aron in connection therewith, provided that:
(i) J. Aron’s procurement of any such EPS Compliant Energy for ultimate redelivery hereunder shall be subject to Purchaser’s prior written consent, with such consent not to be unreasonably withheld, provided, for the avoidance of doubt, that it shall be reasonable for Purchaser to withhold its consent based on the requirements of the EPS or other regulatory requirements;
(ii) Issuer and Purchaser may agree upon appropriate
amendments to this Agreement to facilitate the delivery of such EPS Compliant Energy, including with respect to the Delivery Point, consequences of failing to deliver or receive and scheduling matters; (iii) the period of delivery for any such EPS Compliant Energy (any such period, a “ J. Aron EPS Energy Period”) shall not exceed the length, as applicable, of (A) the then -current Reset Period if such EPS Compliant Energy is obtained for delivery for the remainder of a Reset Period and (B) the length of the next succeeding Reset Period if such EPS
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Compliant Energy is obtained for delivery commencing in such succeeding Reset Period; and
(iv) during a J. Aron EPS Energy Period, if requested by J. Aron, Purchaser shall continue to exercise Commercially Reasonable Efforts and cooperate with J. Aron in good faith to assign Assigned Rights and Obligations to J. Aron under an Assignable Power Contract. (d) Amendments. Purchaser and Issuer agree to seek the written consent of J. Aron prior to any amendment to this Article VI or Exhibit F hereto. (e) Present Assignment of Assigned PPA Damages to Purchaser. The Parties hereto acknowledge that the terms of the Issuer Assignment Agreements shall not entitle J. Aron to damages from an APC Party under an Assigned PPA for any reason whatsoever (any such damages, “Assigned PPA Damages ”).
Nonetheless, the Parties acknowledge as follows: (i) pursuant to the Electricity Sale and Service Agreement, J. Aron has presently assigned and transferred to Prepay LLC all right, title and interest to any Assigned PPA Damages that J. Aron may become entitled to receive; (ii) pursuant to the Master Power Supply Agreement, Prepay LLC has presently assigned and transferred to Issuer all right, title and interest to any Assigned PPA Damages that Prepay LLC may become entitled to receive; and (iii) Issuer hereby presently transfers and assigns to Purchaser all of Issuer’s right, title and interest to any Assigned PPA Damages that Issuer may become entitled to receive.
Section 6.2 F
ailure to Obtain EPS Compliant Energy. To the extent an EPS Energy Period terminates or expires and Purchaser and J. Aron have been unable to obtain EPS Compliant Energy for delivery hereunder pursuant to the provisions of Section 6.1, then, until EPS Compliant Energy is obtained for delivery hereunder, Prepay LLC shall remarket Purchaser’s Base Quantities pursuant to the provisions of Exhibit C to the Master Power Supply Agreement, subject to the following:
(a) the requirements set forth in Section 6.1 shall continue to apply; and (b) Purchaser shall not make any new commitment to purchase Priority Products during such a remarketing.
Section 6.3 Adjustments to Base Quantities. The Base Quantity Reductions set forth on Exhibit A-1 hereto have been calculated to reflect the Initial Assigned Rights and Obligations using the same methodology that would apply to determine such Base Quantity Reductions in connection with the assignment of any Replacement Assigned Rights and Obligations as provided in Exhibit F hereto. Effective upon the first day of the second Month following the early termination of an EPS Energy Period for any reason during the Delivery Period, Issuer shall revise Exhibit A-1 to (i) update the Base Quantity Reductions as provided in Exhibit F to the extent a subsequent EPS Energy Period will commence on such date or (ii) reverse such Base Quantity Reductions associated with the EPS Energy Period that terminated for all remaining Hours in the
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Delivery Period to the extent a replacement EPS Energy Period will not commence on such date.
In the case of any other commencement of a subsequent EPS Energy Period, Issuer shall revise the Base Quantity Reductions in Exhibit A-1 as provided by Exhibit F hereto.
ARTICLE VII.
USE OF PRODUCT
Section 7.1 Tax Exempt Status of the Bonds. Purchaser acknowledges that the Bonds will be issued with the intention that the interest thereon will be exempt from federal taxes under Section 103 of the Code. Accordingly, Purchaser agrees that it will (a) provide such information with respect to its utility system as may be requested by Issuer in order to establish the tax-exempt status of the Bonds, and (b) act in accordance with such written instructions as Issuer may provide from time to time in order to maintain the tax-exempt status of the Bonds. Purchaser further agrees that it will not at any time take any action, or fail to take any action, that, if taken or omitted, respectively, would adversely affect the tax-exempt status of the Bonds.
Section 7.2 P
riority Products . Purchaser agrees to purchase and receive the Base Quantities and Assigned Quantities to be delivered under this Agreement (a) in priority over and in preference to all other Products available to Purchaser that are not Priority Products; and (b) on at least a pari passu and non-discriminatory basis with other Priority Products.
Section 7.3 A
ssistance with Sales to Third Parties. If (a) a quantity of Assigned Product less than the Assigned Prepay Quantity under an Assigned PPA is delivered in any Month during an Assignment Period for any reason other than Force Majeure, (b) Issuer is required under Section
3.5 t o cause Base Quantities that otherwise would be delivered hereunder to be remarketed or (c) notwithstanding Purchaser’s compliance with Section 7.1, Purchaser does not require all or any portion of the Assigned Prepay Quantities to meet its requirements for Energy for any Hour or Month that it is obligated to purchase under this Agreement as a result of (i) insufficient demand by Purchaser’s retail customers or (ii) a change in Law, Purchaser may, with reasonable notice issued in the form of a remarketing notice in accordance with Exhibit G, request (and, in the case of clause (a), shall be deemed to request) that Prepay LLC, as permitted by the Master Power Supply Agreement, sell such portion of such Base Quantities or Assigned Energy (A ) to another Municipal Utility, or (B) if necessary, to another purchaser. Any remarketing notice issued under clause (ii) above shall constitute a Structural Remarketing Notice (as defined in the Master Power Supply Agreement) and shall be subject to the requirements set forth in the Master Power Supply Agreement. If Prepay LLC makes such a sale under Exhibit C to the Master Power Supply Agreement, Issuer shall credit against the amount owed by Purchaser to Issuer hereunder the amount received by Issuer from Prepay LLC for such sales less all costs and expenses directly incurred by Issuer, including but not limited to remarketing administrative charges paid by it to Prepay LLC under the Master Power Supply Agreement, but in no event shall the amount of such credit be more than the Contract Price for the Energy so sold.
Section 7.4 Q
ualifying Use. Without limiting Purchaser’s other obligations under this Article VII, Purchaser agrees that, subject to Section 7.5, it will use all of the Product purchased under this Agreement in compliance with the Qualifying Use Requirements. Purchaser agrees that
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it will provide such additional information, records and certificates as Issuer may reasonably request to confirm Purchaser’s compliance with this Section 7.4.
Section 7.5 Remediation.
(a) The Parties acknowledge that Purchaser may at times inadvertently remarket Products received hereunder in a manner that does not comply with Qualifying Use Requirements due to daily and Hourly fluctuations in Purchaser’s Product needs. To the extent Purchaser does so, Purchaser shall (a) exercise Commercially Reasonable Efforts to use any Disqualified Sale Proceeds of such remarketing to purchase Products (other than Priority Products) that Purchaser then uses in compliance with the Qualifying Use Requirements and (b) reserve funds in an amount equal to any Disqualified Sale Proceeds until such Disqualified Sale Proceeds are remediated or transferred to the Trustee pursuant to Section 7.6(b)
below.
(b) To the extent that all or a portion of the Contract Quantity is remarketed under Section 7.3 and any such remarketing results in a Ledger Entry (as defined in the Master Power Supply Agreement), Purchaser agrees that it shall (i) exercise Commercially Reasonable Efforts to u se an amount equivalent to the remarketing proceeds associated with any such Ledger Entry to purchase Non - Priority Products and use such Non-Priority Products in compliance with the Qualifying Use Requirements in order to remediate such Ledger Entries; and (ii) apply its purchases of Non-Priority Products to remediate any such proceeds under the Master Power Supply Agreement prior to remediating such proceeds under any other contract that provides for the purchase of Priority Energy, except to the extent compliance with the priority provision of this clause (ii) is inconsistent with the terms of any obligation of Purchaser that pre-exists the date hereof under [____].
To track compliance with Purchaser’s obligations under this Section 7.5(b) ,
Purchaser shall deliver a remediation certificate to Issuer and Prepay LLC by the twentieth day of the Month subsequent to any relevant Non-Priority Products purchases (which may include purchases of Energy from CAISO to the extent such Energy is used in compliance with the Qualifying Use Requirements); provided that the Parties acknowledge and agree that any purchases of Assigned PAYGO Products (commencing with purchases of Assigned PAYGO Products in the Month in which any such Ledger Entry occurs) shall be applied to remediate any such Ledger Entries. For Ledger Entries remediated under this Section 7.5(b) that have
not otherwise been remediated by Prepay LLC pursuant to the remarketing provisions of the Master Power Supply Agreement, Issuer shall pay Purchaser any portion of the Monthly Discount Percentage associated with such Ledger Entries that is available under the Bond Indenture on or before the last Business Day of the Month in which Purchaser provides a certificate under this Section 7.5(b)
evidencing such remediation.
Section 7.6 R emediation; Ledger Entries; Redemption.
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(a) Remediation. To track compliance with the requirements of Section 7.5(a), Purchaser will provide a quarterly report to Issuer (delivered not later than the 25 th day of each April, July, October and January until the end of the Delivery Period) showing the following: the total quantity of proceeds from sales of Products received hereunder that (i) were sold by Purchaser to any Person in a transaction that does not comply with the Qualifying Use Requirements and (ii) have not been remediated by Purchaser by applying such proceeds to purchase Products that are used in compliance with the Qualifying Use Requirements (the quantities of Product producing such proceeds, “ Disqualified Sale Units ” and such proceeds received, “ Disqualified Sale Proceeds”).
(b) Ledger Entries . Issuer shall report such unremediated Disqualified Sale Proceeds and the associated Disqualified Sale Units to Prepay LLC for addition to the remarketing ledgers maintained by Prepay LLC under the Master Power Supply Agreement, with the ledger entries to be dated as of the end of the first month of the relevant quarter. (c) T ransfers to Trustee. P urchaser shall transfer (to the extent such unremediated Disqualified Sales Proceeds and associated Disqualified Sale Units remain reflected on the remarketing ledger described under
Section 7.6(b) at the time such transfer is required by this Section 7.6(c)) any such unremediated Disqualified Sale Proceeds and any other required funds (i.e., all additional funds necessary for redemption of the Bonds referred to in this Section 7.6(c)) to the Trustee at least 95 days prior to the second anniversary of the date on which such unremediated Disqualified Sale Proceeds and the associated Disqualified Sale Units were first reflected on the remarketing ledgers in accordance with Section 7.6(b), with such funds to be deposited in the Debt Servic e Account (as defined in the Bond Indenture) and applied to the redemption of Bonds as directed by Issuer and approved by Special Tax Counsel (as defined in the Bond Indenture) as preserving the tax-exempt status of the Bonds.
ARTICLE VIII.
REPRESENTATIONS AND WARRANTIES; ADDITIONAL COVENANTS
Section 8.1 Representations and Warranties. As a material inducement to entering into this Agreement, each Party, with respect to itself, hereby represents and warrants to the other Party as of the Execution Date as follows:
(a) in the case of Issuer as the representing Party , Issuer is a joint powers authority, duly organized and validly existing under the Laws of the State of California, (b) in the case of Purchaser as the representing Party , Purchaser is a public agency of the State of California, duly organized and validly existing under the Laws of the State of California;
(c) it has all requisite power and authority, corporate or otherwise, to own its material properties, carry on its material business as now being conducted, enter into, deliver and to perform its obligations under this Agreement and to carry out the terms and conditions hereof and the transactions contemplated hereby;
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(d) there is no litigation, action, suit, proceeding with service of process accomplished with respect to such Party or investigation pending or, to the best of such Party’s knowledge, threatened, in each case before or by any Government Agency and, in each case, which could reasonably be anticipated to materially and adversely affect such Party’s ability to perform its obligations under this Agreement or that questions the validity, binding effect or enforceability hereof, any action taken or to be taken by such Party pursuant hereto, or any of the transactions contemplated hereby;
(e) the execution, delivery and performance of this Agreement by such Party have been duly authorized by all necessary action on the part of such Party and its governing body and do not require any approval or consent of any security holder of such Party or any holder (or any trustee for any holder) of any indebtedness or other obligation of such Party; (f) this Agreement has been duly executed and delivered on behalf of such Party by an appropriate officer or authorized Person of such Party and constitutes the legal, valid and binding obligation of such Party, enforceable against it in accordance with its te rms, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and by general principles of equity and except possibly for Sections 12.2 and 12.3;
(g) the execution, delivery and performance of this Agreement by such Party shall not violate any provision of any Law , order, writ, judgment, decree or other legal or regulatory determination applicable to it;
(h) the execution, delivery and performance by such Party of this Agreement, and the consummation of the transactions contemplated hereby, including the incurrence by such Party of its financial obligations under this Agreement, shall not result in any violation of any term of any material contract or agreement applicable to it, or any of its charter or bylaws or of any license, permit, franchise, judgment, writ, injunction or regulation, decree, order, charter, Law , ordinance, rule or regulation applicable to it or any of its properties or to any obligations incurred by it or by which it or any of its properties or obligations are bound or affected, or of any determination or award of any arbitrator applicable to it, and shall not conflict with, or cause a breach of, or default under, any such term or result in the creation of any lien upon any of its properties or assets, except with respect to Issuer, the lien of the Bond Indenture; (i) no Governmental Approval is required in connection with the valid authorization, execution, delivery and performance by such Party of this Agreement or the consummation of any of the transactions contemplated hereby other than those Governmental Approvals that have been obtained; and
(j) it enters this Agreement as a bona-fide, arms-length transaction involving the mutual exchange of consideration and, once executed by both Parties, considers this Agreement a legally enforceable contract.
Section 8.2 Warranty of Title . Issuer warrants that it will deliver to Purchaser (a) all Base Product free and clear of all liens, security interests, claims and encumbrances or any interest
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therein or thereto by any Person arising prior to the Delivery Point, and (b) all Assigned Product free and clear of all liens, security interests, claims and encumbrances or any interest therein or thereto by any Person that are imposed on such Assigned Product solely as a result of Issuer’s or Prepay LLC’s actions.
Section 8.3 Disclaimer of Warranties . EXCEPT FOR THE WARRANTIES
EXPRESSLY MADE BY ISSUER IN THIS ARTICLE VIII, ISSUER HEREBY DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 8.4 C ontinuing Disclosure . Purchaser agrees to provide to Issuer : (a) such financial and operating information as may be requested by Issuer, including Purchaser’s most recent audited financial statements, for use in Issuer’s offering documents for the Bonds ; and (b) annual updates to such information and statements to enable Issuer to comply with its undertakings to enable the underwriters of the offerings of the Bonds to comply with the continuing disclosure provisions of Rule 15(c)2-12 of the United States Securities and Exchange Commission . Failure by Purchaser to comply with its agreement to provide such annual updates shall not be a default under this Agreement, but any such failure shall entitle Issuer or an owner of the Bonds to take such actions and to initiate such proceedings as may be necessary and appropriate to cause Purchaser to comply with such agreement, including without limitation the remedies of mandamus and specific performance.
ARTICLE IX.
TAXES
As between Issuer and Purchaser, Issuer shall (i) be responsible for, and pay or cause to be paid, all ad valorem, excise, severance, production and other taxes assessed with respect to Product (other than any Assigned Product) delivered pursuant to this Agreement arising prior to the applicable Delivery Point and (ii) indemnify Purchaser and its Affiliates for any such taxes paid by Purchaser or its Affiliates, in each case to the extent Issuer is reimbursed or indemnified for such taxes by Prepay LLC . As between Issuer and Purchaser, Purchaser shall (i) be responsible for all taxes with respect to Product received pursuant to this Agreement assessed at or from the applicable Delivery Point (other than ad valorem, franchise or income taxes which are related to the sale of Product other than Assigned Energy and, therefore, the responsibility of Issuer) and all ad valorem, excise, severance, production and other taxes assessed with respect to Product delivered pursuant to this Agreement assessed against Issuer and not reimbursed or indemnified by Prepay LLC, and (ii) indemnify Issuer and its Affiliates for any such taxes paid by Issuer or its Affiliates. Nothing shall obligate or cause a Party to pay or be liable for any tax for which it is exempt under Law.
ARTICLE X.
JURISDICTION
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ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST EITHER PARTY ARISING
OUT OF OR RELATING HERETO SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS
OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES OF AMERICA, IN EITHER CASE LOCATED IN LOS ANGELES COUNTY, CALIFORNIA. BY EXECUTING AND
DELIVERING THIS AGREEMENT, EACH PARTY, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY ACCEPTS GENERALLY AND
UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; AGREES THAT
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY
BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH ARTICLE XVI; AND
AGREES THAT SERVICE AS PROVIDED ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE PARTY IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.
ARTICLE XI.
FORCE MAJEURE
Section 11.1 Applicability of Force Majeure. To the extent either Party is prevented by Force Majeure from carrying out, in whole or part, its obligations under this Agreement and such Party (the “Claiming Party ”) gives notice and details of the Force Majeure to the other Party as soon as practicable, then the Claiming Party shall be excused from the performance of its obligations with respect to this Agreement (other than the obligation to make payments then due or becoming due with respect to performance prior to the Force Majeure). The Claiming Party shall remedy the Force Majeure with all reasonable dispatch. For the duration of the Claiming Party’s non-performance (and only for such period), the non-Claiming Party shall not be required to perform or resume performance of its obligations to the Claiming Party corresponding to the obligations of the Claiming Party excused by Force Majeure.
Section 11.2 S
ettlement of Labor Disputes . Notwithstanding anything to the contrary herein, the Parties agree that the settlement of strikes, lockouts or other industrial disturbances shall be within the sole discretion of the Party experiencing such disturbance, and the failure of a Party to settle such strikes, lockouts or other industrial disturbances shall not prevent the existence of Force Majeure or of reasonable dispatch to remedy the same.
ARTICLE XII.
GOVERNMENTAL RULES AND REGULATIONS
Section 12.1 Compliance with Laws. This Agreement shall be subject to all present and future Laws of any Government Agency having jurisdiction over this Agreement or the transactions to be undertaken hereunder, and neither Party has knowingly undertaken or will knowingly undertake or knowingly cause to be undertaken any activity that would conflict with such Laws; provided, however, that nothing herein shall be construed to restrict or limit either
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Party’s right to object to or contest any such Law , or its application to this Agreement or the transactions undertaken hereunder, and neither acquiescence therein or compliance therewith for any period of time shall be construed as a waiver of such right.
Section 12.2 Contests. Excluding all matters involving a contractual dispute between the Parties, no Party shall contest, cause to be contested or in any way actively support the contest of the equity, fairness, reasonableness or lawfulness of any terms or conditions set forth or established pursuant to this Agreement, as those terms or conditions may be at issue before any Government Agency in any proceeding, if the successful result of such contest would be to preclude or excuse the performance by either Party of this Agreement or any provision hereunder.
Section 12.3 D
efense of Agreement. Excluding all matters involving a contractual dispute between the Parties, each Party shall hereafter defend and support this Agreement before any Government Agency in any proceeding, if the substance, validity or enforceability of all or any part of this Agreement is hereafter directly challenged or if any proposed changes in regulatory practices or procedures would have the effect of making this Agreement invalid or unenforceable or would subject either Party to any greater or diffe rent regulation or jurisdiction that materially affects the rights or obligations of the Parties under this Agreement.
ARTICLE XIII.
ASSIGNMENT
The terms and provisions of this Agreement shall extend to and be binding upon the Parties and their respective successors, assigns, and legal representatives; provided, however, that, subject to Section 18.14, neither Party may assign this Agreement or its rights and interests, in whole or in part, under this Agreement without the prior written consent of the other Party ; provided furthermore that, for the avoidance of doubt, Issuer agrees that it shall terminate any applicable Issuer Assignment Agreement concurrently with the assignment of this Agreement .
Prior to assigning this Agreement, Purchaser shall deliver to Issuer written confirmation from each Rating Agency (as defined in the Bond Indenture) , provided that such agency has rated and continues to rate the Bonds , that the assignment will not result in a reduction, qualification, or withdrawal of the then-current ratings assigned by such Rating Agency to the Bonds. Whenever an assignment or a transfer of a Party’s interest in this Agreement is requested to be made with the written consent of the other Party, the assigning or transferring Party’s assignee or transferee shall expressly assume, in writing, the duties and obligations under this Agreement of the assigning or transferring Party. Upon the agreement of a Party to any such assignment or transfer, the assigning or transferring Party shall furnish or cause to be furnished to the other Party a true and correct copy of such assignment or transfer and assumption of duties and obligations.
ARTICLE XIV.
PAYMENTS
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Section 14.1 Monthly Statements.
(a) Purchaser’s Statements. No later than the 10th day of each Month during the Delivery Period (excluding the first Month of the Delivery Period) and the first Month following the end of the Delivery Period, Purchaser shall deliver to Issuer a statement (a “Purchaser’s Statement”) listing (i) in respect of any Shortfall Quantity in the prior Month, the Replacement Price applicable to such Shortfall Quantity , and (ii) any other amounts due to Purchaser in connection with this Agreement with respect to the prior Months. (b) B illing Statements . For any Month during the Delivery Period for which Purchaser has not issued a valid Remarketing Election Notice, Issuer, no later than the 20th day of each Month during the Delivery Period (excluding the first Month of the Delivery Period) and the first Month following the end of the Delivery Period (the “Billing Date”), shall deliver a statement (a “Billing Statement”) to Purchaser indicating (A ) the total amount due to Issuer for Product delivered in the prior Month, (B) any other amounts due to Issuer or Purchaser in connection with this Agreement with respect to the prior Months, and (C) the net amount due to Issuer or Purchaser; provided that Prepay LLC’s delivery of a Billing Statement to Issuer and Purchaser pursuant to and as defined in the Master Power Supply Agreement shall be deemed to satisfy Issuer’s obligation to deliver a Billing Statement hereunder; provided furthermore that invoicing f or all Assigned PAYGO Products shall occur under the Participant Custodial Agreement. If a Monthly Statement (as defined in the Participant Custodial Agreement) for an Assigned PPA has not been delivered by the 16th day of the Month following deliveries for any Month to which this Section
14.1(b) ap plies or is based on estimated data , Issuer shall provisionally prepare or cause to be prepared a Billing Statement for this Agreement that assumes all of the Assigned Prepay Quantities were delivered under the applicable Assigned PPA for such Month or as was estimated in the Monthly Statement. In such case, to the extent that a Monthly Statement subsequently delivered under the Participant Custodial Agreement reflects that less than the Assigned Prepay Quantities or less than what was previously estimated in a Monthly Statement were actually delivered under any such Assigned PPA, then (I) the previously delivered Billing Statement shall be deemed to be updated in accordance with such Monthly Statement, ( II) Prepay LLC shall be deemed under the remarketing provisions of the Master Power Supply Agreement to remarket and purchase such undelivered portion of the Assigned Prepay Quantities for its own account resulting in a Ledger Entry (as defined in the Master Power Supply Agreement) and (III) Issuer shall owe a resettlement payment to Purchaser in an amount equal to the product of (x) the applicable APC Contract Price multiplied by (y) the portion of the Assigned Prepay Quantities not delivered in such Month. The Parties acknowledge and agree that J. Aron shall have a separate resettlement payment obligation with respect to the amounts described in the clause ( III) of the preceding sentence under the Electricity Sale and Service Agreement, and J. Aron’s payment of the J. Aron Resettlement Payment as defined in and pursuant to the Participant Custodial Agreement shall satisfy the corresponding obligations of the respective parties under each of the Electricity Sale and Service Agreement, the Master Power Supply Agreement and this Agreement. (c) S
upporting Documentation. Upon request by either Party, the other Party shall deliver such supporting documentation of the foregoing statements and information described in this Section 14.1 as such requesting Party may reasonably request.
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Section 14.2 Payments.
(a) Payments Due.
(i) Payment Due Date During the Delivery Period. If a Billing Statement indicates an amount due from Purchaser for any Month during the Delivery Period for which Purchaser has not issued a valid Remarketing Election Notice, then Purchaser shall remit such amount to Issuer by wire transfer (pursuant to the Trustee’s instructions), in immediately available funds, on or before the 20th day of the Month following the most recent Month to which such Billing Statement relates, or if such day is not a Business Day, the preceding Business Day. If the Billing Statement indicates an amount due from Issuer, then Issuer shall remit such amount to Purchaser by wire transfer (pursuant to Purchaser’s instructions), in immediately available funds, on or before the 28th day of the Month following the most recent Month to which such Billing Statement relates, or if such day is not a Business Day, the following Business Day .
Notwithstanding the foregoing, payments due from Purchaser for Assigned PAYGO Product shall be satisfied by Purchaser’s compliance with Section
3.2(a)(ii) in respect of such Assigned PAYGO Product.
(b) No Duty to Estimate . If Purchaser fails to issue a Purchaser’s Statement with respect to any Month, Issuer shall not be required to estimate any amounts due to Purchaser for such Month, provided that Purchaser may include any such amount on subsequent Purchaser’s Statements issued within the next sixty (60) days. The sixty (60) -day deadline in this subsection (b) replaces the two (2) year deadline in Section 14.5 with respect to any claim by any non - delivering Party of inaccuracy in any estimated invoice issued or payment made pursuant to this subsection (b).
Section 14.3 P
ayment of Disputed Amounts. If Purchaser disputes any amounts included in a Billing Statement, Purchaser shall (except in the case of manifest error) nonetheless pay any amount required by the Billing Statement in accordance with Section 14.2 without regard to any right of set-off, counterclaim, recoupment or other defenses to payment that Purchaser may have; provided, however, that Purchaser shall have the right, after payment, to dis pute any amounts included in a Billing Statement or otherwise used to calculate payments due under this Agreement pursuant to Section 14.5. If Issuer disputes any amounts included in the Purchaser’s Statement , Issuer may withhold payment to the extent of the disputed amount; provided, however, that interest shall be due at the Default Rate for any withheld amount later found to have been properly due.
Section 14.4 L ate Payment. If Purchaser fails to remit the full amount payable within one Business Day when due, interest on the unpaid portion shall accrue from the date due until the date of payment at the Default Rate.
Section 14.5 A udit; Adjustments.
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(a) Right to Audit. A Party shall have the right, at its own expense, upon reasonable notice to the other Party and at reasonable times, to examine and audit and to obtain copies of the relevant portion of the books, records, and telephone recordings of the other Party to the extent reasonably necessary, but only to such extent, to verify the accuracy of any statement, charge, payment, or computation made under this Agreement . This right to examine, audit, and obtain copies shall not be available with respect to proprietary information not directly relevant to transactions under this Agreement.
(b) D
eadline for Objections . Each Purchaser’s S tatement and each Billing Statement shall be conclusively presumed final and accurate, and all associated claims for under- or overpayments shall be deemed waived unless such Purchaser’s Statement or Billing S tatement is objected to in writing, with adequate explanation and/or documentation, within two (2) years after the applicable Month of Product delivery.
(c) P ayment of Adjustments. All retroactive adjustments shall be paid in full by the Party owing payment within 30 days of notice and mutually agreed upon substantiation of such inaccuracy. If the Parties are unable to agree upon any retroactive adjustments requested by either Party within the time period specified in
Section 14.5(b), then either Party may pursue any
remedies available with respect to such adjustments at law or in equity. Retroactive adjustments for payments made based on an incorrect Purchaser’s Statement or Billing Statement shall bear interest at the Default Rate from the date such payment was made.
Section 14.6 N etting; No Set -Off. The Parties shall net all amounts due and owing, including any past due amounts (which, for the avoidance of doubt, shall include any accrued interest), arising under this Agreement such that the Party owing the greater amount shall make a single payment of the net amount to the other Party in accordance with this Article XIV .
Notwithstanding the foregoing, no Party shall be entitled to net any amounts that are in dispute , and payment for all amounts set forth in a Billing Statement provided to Purchaser shall be made without set-off or counterclaim of any kind.
Section 14.7 S ource of Purchaser’s Payments. Purchaser covenants and agrees to make payments due hereunder from Utility Revenues, and only from such Utility Revenues, as an operating expense of its utility system; provided, however, that Purchaser may apply any legally available monies to the payment of amounts due hereunder.
Section 14.8 R
ate Covenant. Purchaser hereby covenants and agrees that it will establish, fix, prescribe, maintain, and collect rates, fees, and charges from the customers of its utility system so as to provide Utility Revenues sufficient to enable Purchaser to pay Issuer all amounts payable under this Agreement and to pay all other amounts payable from Utility Revenues, and to maintain any required reserves for Purchaser’s utility system. Purchaser further covenants and agrees that it shall not furnish or supply services free of charge to any Person, except any such service free of charge that Purchaser is supplying on the date hereof as has been specifically identified by Purchaser to Issuer in writing, and it shall promptly enforce the payment of any and all account s owing to Purchaser for the sale of Product or the provision of distribution or other services to its customers. Purchaser further covenants and agrees that in any future bond issue undertaken by Purchaser, or in connection with any other financing or f inancial transaction, Purchaser shall
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provide that the amounts payable by it under this Agreement constitute a cost of purchased Product and an operating expense of its electric system payable, together with all other operating expenses, from a first charge on Utility Revenues. Purchaser further covenants that it shall not take any action that would give rise to an event under Section 17.2(b) with respect to Purchaser.
Section 14.9 Pledge of Utility Revenues. Purchaser shall not grant any lien on or security interest in, or otherwise pledge or encumber, the Utility Revenues if the terms or effect of such lien, pledge or other encumbrance results in such lien, pledge or other encumbrance having priority over the obligations of Purchaser to pay the Contract Price, which obligations constitute operating expenses of Purchaser.
Section 14.10 F
inancial Responsibility . When reasonable grounds for insecurity of payments due under this Agreement arise, Issuer may demand, and Purchaser shall provide within two (2) Business Days if demanded, adequate assurance of performance. Reasonable grounds include but are not limite d to the occurrence of an insolvency or liquidation proceeding with respect to Purchaser or the downgrading of Purchaser’s credit rating, if any, to a level below investment grade, or such facts and circumstances which would constitute reasonable grounds for insecurity under applicable Law. Adequate assurance shall mean sufficient security in the form and for a term reasonably specified by Issuer, including but not limited to a standby irrevocable letter of credit, a prepayment, a deposit to an escrow account, or a performance bond or guaranty by a creditworthy entity. The Parties agree that in the event Purchaser fails to provide such adequate assurance as demanded, Issuer shall have the right to suspend its performance under this Agreement, including the making of deliveries of Product to Purchaser, on one (1) day written notice and shall not be obligated to restore such performance until the later of (i) the first day of the Month after such demand has been satisfied, and (ii) the completion of the term of deliveries to any replacement sales customer to which Prepay LLC has remarketed the Product on behalf of Issuer.
ARTICLE XV.
[RESERVED]
ARTICLE XVI.
NOTICES
Any notice, demand, statement or request required or authorized by this Agreement to be given by one Party to the other Party (or to any third party) shall be in writing and shall either be sent by courier or personal delivery (including overnight delivery service) to each of the notice recipients and addresses specified in Exhibit B for the receiving Party. Any such notice, demand, or request shall be deemed to be given when actually received (including overnight delivery service). Each Party shall have the right, upon 10 days’ prior written notice to the other Party, to change its list of notice recipients and addresses in Exhibit B. The Parties may mutually agree in writing at any time to deliver notices, demands or requests through alternate or additional methods.
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ARTICLE XVII.
DEFAULT; REMEDIES; TERMINATION
Section 17.1 Issuer Default. Each of the following events shall constitute a n “ Issuer Default” under this Agreement:
(a) any representation or warranty made by Issuer in this Agreement shall prove to have been incorrect in any material respect when made; or (b) Issuer shall have failed to perform, observe or comply with any covenant, agreement or term contained in this Agreement , and such failure continues for more than thirty (30) days following receipt by Issuer of written notice thereof.
Section 17.2 Purchaser Default . Each of the following events shall constitute a “Purchaser Default” under this Agreement:
(a) Purchaser fails to pay when due any amounts owed to Issuer pursuant to this Agreement and such failure is not remedied within three days following receipt by Purchaser of written notice thereof;
(b) Purchaser (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (ii) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors; (iv) institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency Law or other similar Law affecting creditors’ rights, or a petition is presented for its winding- up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition (A) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation or (B) is not dismissed, discharged, stayed or restrained, in each case within 30 days of the institution or presentation thereof; (v) has a resolution passed for its winding- up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); (vi) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all of its assets; (vii) has a secured party take possession of all or substantially all of its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its of assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; (viii) causes or is subject to any event with respect to it which, under the applicable Laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (i) through (vii) ; or (ix) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts; (c) any representation or warranty made by Purchaser in this Agreement proves to have been incorrect in any material respect when made;
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(d) Purchaser shall have failed to perform, observe or comply with any covenant, agreement or term contained in this Agreement, and such failure continues for more than 15 days following the earlier of receipt by Purchaser of notice thereof; or (e) Purchaser shall have failed to establish, maintain, or collect rates or charges adequate to provide Utility Revenues sufficient to enable Purchaser to pay all amounts due to Issuer under this Agreement.
Section 17.3 Remedies Upon Default.
(a) Termination. If at any time a n Issuer Default or a Purchaser Default has occurred and is continuing, then the non-defaulting Party may do any or all of the following (i) by notice to the defaulting Party specifying the relevant Issuer Default or Purchaser Default, as applicable, terminate this Agreement effective as of a day not earlier than the day such notice is deemed given under Article XVI and/or (ii) declare all amounts due to the non-defaulting Party under this Agreement or any part thereof immediately due and payable, and the same shall thereupon become immediately due and payable, without notice, demand, presentment, notice of dishonor, notice of intent to demand, protest or other formalities of any kind, all of which are hereby expressly waived by the defaulting Party ; provided, however, this Agreement shall automatically terminate, and all amounts due to the non-defaulting Party hereunder shall immediately become due and payable as of the time immediately preceding the institution of the relevant proceeding or the presentation of the relevant petition giving rise to a Purchaser Default specified in Section
17.2(b)(iv) or, to the extent analogous thereto, Section 17.2(b) (viii). In addition, during the existence of an Issuer Default or a Purchaser Default, as applicable, the non-defaulting Party may exercise all other rights and remedies available to it at Law or in equity, including without limitation mandamus, injunction and action for specific performance, to enforce any covenant, agreement or term of this Agreement.
(b) Additional Remedies . In addition to the remedies set forth in Section
17.3(a) ( and without limiting any other provisions of this Agreement ), during the existence of any Purchaser Default, Issuer may suspend its performance hereunder and discontinue the supply of all or any portion of the Product otherwise to be delivered to Purchaser by it under this Agreement. If Issuer exercises its right to suspend performance under this Section 17.3(b), Purchaser shall remain fully liable for payment of all amounts in default and shall not be relieved of any of its payment obligations under this Agreement . Deliveries of Product may only be reinstated, at a time to be determined by Issuer, upon (i) payment in full by Purchaser of all amounts then due and payable under this Agreement and (ii) unless otherwise agreed by Issuer, payment in advance by Purchaser at the beginning of each Month of amounts estimated by Issuer to be due to Issuer for the future delivery of Product under this Agreement for such Month. Issuer may continue to require payment in advance from Purchaser after the reinstatement of Issuer’s supply services under this Agreement for such period of time as Issuer in its sole discretion may determine is appropriate. In addition, and without limiting any other provisions of or remedies available under this Agreement , if Purchaser fails to accept from Issuer any Product tendered for delivery under this Agreement, Issuer shall have the right to sell such Product to third parties on any terms that Issuer, in its sole discretion, determines are appropriate.
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(c) Effect of Early Termination. As of the effectiveness of any termination date in accordance with clause (i) of Section 17.3(a), (i) the Delivery Period shall end, (ii) the obligation of Issuer to make any further sales and deliveries of Product to Purchaser under this Agreement shall terminate, (iii) the obligation of Purchaser to purchase and receive deliveries of Product from Issuer under this Agreement will terminate and (iv) the Parties shall exercise their right to terminate any Purchaser Assignment Agreements effective as of the end of the Delivery Period hereunder .
Neither this Agreement nor the Delivery Period may be terminated for any reason except as specified in this Article XVII. Without prejudice to any payment obligation in respect of periods prior to termination, no payments will be due from either Party in respect of periods occurring after the effective termination date of this Agreement.
Section 17.4 T ermination of Master Power Supply Agreement; Failed Bond Remarketing. Purchaser acknowledges and agrees that (i) in the event the Master Power Supply Agreement terminates prior to the end of the primary term of this Agreement, this Agreement shall terminate on the effective date of early termination of the Master Power Supply Agreement (which date shall be the last date upon which deliveries are required thereunder, subject to all winding up arrangements), (ii) Issuer’s obligation to deliver Product under this Agreement shall terminate upon the termination of deliveries of Product to Issuer under the Master Power Supply Agreement and (iii) in either such event, Issuer shall exercise its right to terminate any Purchaser Assignment Agreements and Issuer Assignment Agreements in effect. Issuer shall provide notice to Purchaser of any early termination date of the Master Power Supply Agreement. The Parties recognize and agree that, in the event that the Master Power Supply Agreement terminates because of a Failed Remarketing (as defined in the Bond Indenture) of the Bonds that occurs in the first Month of a Reset Period, Issuer shall deliver Product under this Agreement for the remainder of such first Month, and, notwithstanding anything in this Agreement to the contrary, no Monthly Discount Percentage or Annual Refunds shall be associated with such deliveries and the Contract Price shall be adjusted accordingly.
Section 17.5 L
imitation on Damages . THE PARTIES CONFIRM THAT THE
EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. EXCEPT WHERE
EXPRESSLY PROVIDED OTHERWISE, FOR BREACH OF ANY PROVISION FOR WHICH
AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS HEREIN PROVIDED, SUCH
EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, THE OBLIGOR’S LIABILITY SHALL BE LIMITED AS SET
FORTH IN SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. NEITHER PARTY SHALL BE LIABLE FOR
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES,
LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION, OR OTHERWISE. IT IS
THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON
REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE
OR CAUSES RELATED THERETO, INCLUDING WITHOUT LIMITATION THE
NEGLIGENCE OF EITHER PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES
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REQUIRED TO BE PAID UNDER THIS AGREEMENT ARE LIQUIDATED, THE PARTIES
ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO
DETERMINE, OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT,
AND THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS. IN DETERMINING THE APPROPRIATE MEASURE OF
DAMAGES THAT WOULD MAKE THE PARTIES WHOLE, THE PARTIES HAVE
THOROUGHLY CONSIDERED, INTER ALIA, THE UNCERTAINTY OF FLUCTUATIONS
IN PRODUCT PRICES, THE ABILITY AND INTENTION OF THE PARTIES TO HEDGE
SUCH FLUCTUATIONS, THE BARGAINED- FOR ALLOCATION OF RISK, THE
KNOWLEDGE, SOPHISTICATION AND EQUAL BARGAINING POWER OF THE
PARTIES, THE ARMS -LENGTH NATURE OF THE NEGOTIATIONS, THE SPECIAL
CIRCUMSTANCES OF THIS TRANSACTION, THE ACCOUNTING AND TAX
TREATMENT OF THE TRANSACTION BY THE PARTIES, AND THE ENTERING INTO OF
OTHER TRANSACTIONS IN RELIANCE ON THE ENFORCEABILITY OF THE LIQUIDATED DAMAGES PROVISIONS CONTAINED HEREIN.
ARTICLE XVIII.
MISCELLANEOUS
Section 18.1 Indemnification Procedure. With respect to each indemnification included in this Agreement, the indemnity is given to the fullest extent permitted by applicable Law , and the following provisions shall be applicable. The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim, and the indemnifying Party shall have the right to assume its investigation and defense, including employment of counsel, and shall be obligated to pay related court costs, attorneys’ fees and experts’ fees and to post any appeals bonds; provided, however, that the indemnified Party shall have the right to employ at its expense separate counsel and participate in the defense of any Claim. The indemnifying Party shall not be liable for any settlement of a Claim without its express written consent thereto. In order to prevent double recovery, the indemnified Party shall reimburse the indemnifying Party for reasonable payments or costs incurred in respect of an indemnity with the proceeds of any judgment, insurance, bond, surety or other recovery made by the indemnified Party with respect to a covered event.
Section 18.2 D
eliveries. Contemporaneously with this Agreement (unless otherwise specified),
(a) each Party shall deliver to the other Party evidence reasonably satisfactory to it of (i) such Party’s authority to execute, deliver and perform its obligations under this Agreement and (ii) the appropriate individuals who are authorized to sign this Agreement on behalf of such Party;
(b) on the Bond Closing Date, Purchaser shall deliver to Issuer a fully executed Federal Tax Certificate in the form attached hereto as Exhibit D; and (c) on the Bond Closing Date, Purchaser shall deliver to Issuer an opinion of counsel to Purchaser in the form attached hereto as Exhibit E.
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Section 18.3 Entirety; Amendments . This Agreement, including the exhibits and attachments hereto, constitutes the entire agreement between the Parties and supersedes all prior discussions and agreements between the Parties with respect to the subject matter hereof. There are no prior or contemporaneous agreements or representations affecting the same subject matter other than those expressed herein. Except for any matters that, in accordance with the express provisions of this Agreement, may be resolved by oral agreement between the Parties , no amendment, modification, supplement, or change hereto shall be enforceable unless reduced to writing and executed by both Parties.
Section 18.4 G
overning Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED, ENFORCED AND PERFORMED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLE THAT WOULD DIRECT THE APPLICATION OF ANOTHER JURISDICTION’S LAW.
Section 18.5 No
n-Waiver. No waiver of any breach of any of the terms of this Agreement shall be effective unless such waiver is in writing and signed by the Party against whom such waiver is claimed. No waiver of any breach or breaches shall be deemed a waiver of any other subsequent breach.
Section 18.6 S everability. If any provision of this Agreement, or the application thereof, shall for any reason be invalid or unenforceable, then to the extent of such invalidity or unenforceability, the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected thereby, but rather shall be enforced to the maximum extent permissible under applicable Law , so long as the economic and legal substance of the transactions contemplated hereby is not affected in any materially adverse manner as to either Party.
Section 18.7 E
xhibits. Any and all Exhibits and attachments referenced in this Agreement are hereby incorporated herein by reference and shall be deemed to be an integral part hereof.
Section 18.8 W
inding Up Arrangements. All indemnity and confidentiality obligations, audit rights, and other provisions specifically providing for survival shall survive the expiration or termination of this Agreement. The expiration or termination of this Agreement shall not relieve either Party of (a) any unfulfilled obligation or undischarged liability of such Party on the date of such termination or (b) the consequences of any breach or default of any warranty or covenant contained in this Agreement. All obligations and liabilities described in the preceding sentence of this
Section 18.8 , and applicable provisions of this Agreement creating or relating to such obligations and liabilities, shall survive such expiration or termination.
Section 18.9 R elationship of Parties. The Parties shall not be deemed to be in a relationship of partners or joint venturers by virtue of this Agreement, nor shall either Party be an agent, representative, trustee or fiduciary of the other. Neither Party shall have any authority to
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bind the other to any agreement. This Agreement is intended to secure and provide for the services of each Party as an independent contractor.
Section 18.10 Immunity. Each Party represents and covenants to and agrees with the other Party that it is not entitled to claim immunity on the grounds of sovereignty or other similar grounds with respect to itself from (i) suit or (ii) jurisdiction of any court because of its status as a political subdivision of the State of California; provided that the foregoing relates only to contractual claims and not to any claim based in tort.
Section 18.11 R
ates and Indices. If the source of any publication used to determine the index or other price used in the Contract Price should cease to publish the relevant prices or should cease to be published entirely, an alternative index or other price will be used based on the determinations made by Issuer and Prepay LLC under Section 18.11 of the Master Power Supply Agreement. Issuer shall provide Purchaser the opportunity to provide its recommendations and other input to Issuer for Issuer’s use in the process for selecting such alternative index or other price under Section 18.11 of the Master Power Supply Agreement.
Section 18.12 L
imitation of Liability . During the Delivery Period, the obligations of Issuer under this Agreement are special and limited obligations payable solely from the revenues, income and funds of its Clean Energy Purchase Project that are pledged pursuant to the Bond Indenture.
Section 18.13 C
ounterparts. This Agreement may be executed and acknowledged in multiple counterparts and by the Parties in separate counterparts, each of which shall be an original and all of which shall be and constitute one and the same instrument.
Section 18.14 T hird Party Beneficiaries; Rights of Trustee. Purchaser acknowledges and agrees that (a) Issuer will pledge and assign its rights, title and interest in this Agreement and the amounts payable by Purchaser under this Agreement to secure Issuer’s obligations under the Bond Indenture; (b) the Trustee shall be a third -party beneficiary of this Agreement with the right to enforce Issuer’s rights and Purchaser ’s obligations under this Agreement; (c) J. Aron shall be a third-party beneficiary of this Agreement with the right to enforce the provisions of Article VI and Exhibit F of this Agreement; (d) the Trustee or any receiver appointed under the Bond Indenture shall have the right to perform all obligations of Issuer under this Agreement; and (e) in the event of any Purchaser Default under Section 17.2(a), (i) Prepay LLC may, to the extent provided for in, and in accordance with, the Receivables Purchase Exhibit to the Master Power Supply Agreement, take assignment from Issuer of receivables owed by Purchaser to Issuer under this Agreement, and Prepay LLC or any third party transferee who purchases and takes assignment of such receivables from Prepay LLC shall thereafter have all rights of collection with respect to such receivables (provided that, if at any time an insurance provider agrees to insure Purchaser’s payment obligations hereunder, then such insurance provider shall have the same rights under this Section
18.14 as Prepay LLC) , and (ii) if such receivables are not so assigned, the Swap Counterparty (as defined in the Master Power Supply Agreement) shall have the right to pursue collection of such receivables to the extent any non -payment by Issuer to any Swap Counterparty was caused by Purchaser’s payment default. Pursuant to the terms of the Bond Indenture, Issuer has irrevocably appointed the Trustee as its agent to issue notices and, as directed under the Bond Indenture , to
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take any other actions that Issuer is required or permitted to take under this Agreement. Purchaser may rely on notices or other actions taken by Issuer or the Trustee, and Purchaser has the right to exclusively rely on any notices delivered by the Trustee, regardless of any conflicting notices that it may receive from Issuer.
Section 18.15 Waiver of Defenses. Each Party waives all rights to set-off, counterclaim, recoupment and any other defenses that might otherwise be available to it with regard to its obligations pursuant to the terms of this Agreement.
Section 18.16 L
imitations on Certain Provisions . Notwithstanding anything to the contrary herein, the Parties acknowledge and agree that the provisions of Section 3.4, Article VI, Article VII and Exhibit F shall only apply during the Delivery Period , and such provisions shall be disregarded to the extent this Agreement remains in effect following the Delivery Period.
Section 18.17 R ate Changes.
(a) Standard of Review. Absent the agreement of the Parties to the proposed change, the standard of review for changes to any rate, charge, classification, term or condition of this Agreement, whether proposed by a Party (to the extent that any waiver in Section 18.17(b)
below is unenforceable or ineffective as to such Party ), a non-party or FERC acting sua sponte, shall solely be the “public interest” application of the “just and reasonable” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956) and clarified by Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish, 554 U.S. 527 (2008). (b) Waiver. In addition, and notwithstanding Section 18.17(a), to the fullest extent permitted by applicable Law , each Party, for itself and its successors and assigns, hereby expressly and irrevocably waives any rights it can or may have, now or in the future, whether under Section 205 and/or 206 of the Federal Power Act or otherwise, to seek to obtain from FERC by any means, directly or indirectly (through complaint, investigation or otherwise), and each hereby covenants and agrees not at any time to seek to so obtain, an order from FERC changing any section of this Agreement specifying the rate, charge, classif ication, or other term or condition agreed to by the Parties, it being the express intent of the Parties that, to the fullest extent permitted by applicable Law, neither Party shall unilaterally seek to obtain from FERC any relief changing the rate, charge, classification, or other term or condition of this Agreement , notwithstanding any subsequent changes in applicable Law or market conditions that may occur. In the event it were to be determined that applicable Law precludes the Parties from waiving their rights to seek changes from FERC to their market-based power sales contracts (including entering into covenants not to do so) then this
Section 18.17(b) shall not apply, provided that, consistent with Section
18.17(a), neither Party s hall seek any such changes excep t solely under the “public interest” application of the “just and reasonable” standard of review and otherwise as set forth in Section
18.17(a).
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IN WITNESS WHEREOF, the Parties have caused this Clean Energy Purchase Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first above written.
[Separate Signature Page(s) Attached]
Signature Page to the Clean Energy Purchase Contract
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
By: ____________________________________
Name:______________________________
Title:_______________________________
Signature Page to the Clean Energy Purchase Contract
ATTEST:
By: ___________________________
Name: Theresa Bass
Title: City Clerk
CITY OF ANAHEIM
By: ___________________________
Name: Dukku Lee
Title: Public Utilities General Manager
APPROVED AS TO FORM:
ANAHEIM CITY ATTORNEY’S OFFICE
By: ___________________________
Name: Andrew Lee
Title: Deputy City Attorney
A-1-1
EXHIBIT A-1
BASE QUANTITIES; BASE DELIVERY POINTS; COMMODITY REFERENCE PRICES Primary Delivery Point [To come] (Primary Delivery Point) Delivery Hours [Each Hour beginning at 9:00 a.m. CPT on the first Day of the Delivery Period and ending at the end of the last Hour in the Delivery Period.] [NOTE: This provision shall apply if the Participant elects a 24x7 structure, with such election to be made at the time of or prior to execution of the Agreement.]
[Each Hour from 07:00 a.m. to 11:00 p.m. LPT, Mondays through Fridays, excluding NERC Holidays, during the Delivery Period.
The Base Quantity for all other Hours shall be zero.] [NOTE: This provision shall apply if the Participant elects a 5x16 structure, with such election to be made at the time of or prior to execution of the Agreement.] Commodity Reference Prices Day-Ahead Market Price: [To come] Real-Time Market Price: [To come]
# of Days Month Base Unadjusted Quantity:
MWh/Delivery Hour
Base Quantity Reduction: MWh/Delivery
Hour
Base Quantity: MWh/Delivery Hour
30 Jun-24 0
July-24
Aug-24
Sep-24
Oct-24
Nov-24
Dec-24
Jan-24
Feb-24
Mar-24
A-2-1
EXHIBIT A-2
ASSIGNED RIGHTS AND OBLIGATIONS
Assigned Prepay Quantities
PPA: [PPA 1] [PPA 2] [PPA 3]
Assigned Delivery Point: [____] [____] [____]
APC Contract Price:
$[____]/MWh $[____]/MWh $[____]/MWh
Assignment Period: [____] – [____] [____] – [____] [____] – [____]
Month:
Assigned Prepay
Quantities
Assigned Prepay
Quantities
Assigned Prepay
Quantities
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
A-2-2
7/1/2026
8/1/2026
9/1/2026
10/1/2026
11/1/2026
12/1/2026
B-1
EXHIBIT B
NOTICES
IF TO ISSUER: Southern California Public Power Authority Attention: Executive Director
1160 Nicole Court
Glendora, CA 91740
Email: [email protected]
IF TO PURCHASER:
Scheduling: Scheduling Desk
201 S. Anaheim Blvd., Mail Stop 802
Anaheim, California 92805
(714) 765-4472 or (714) 765-5177
E-mail: [email protected]; [email protected];
[email protected]
Invoicing/Payments: Scott Shimoda
201 S. Anaheim Blvd., Mail Stop 902
Anaheim, California 92805
(714) 765-5036 or (714) 765-5279
E-mail: [email protected]; [email protected]; [email protected]
Statements: Scott Shimoda
201 S. Anaheim Blvd., Mail Stop 902
Anaheim, California 92805
(714) 765-5036 or (714) 765-5279
E-mail: [email protected]; [email protected]; [email protected]
General Notices: City Clerk
200 S. Anaheim Blvd., Mail Stop 217
Anaheim, California 92805
(714) 765-5166
Copy to:
Public Utilities General Manager
201 S. Anaheim Blvd., Mail Stop 1101
Anaheim, California 92805
(714) 765-5173
C-1
EXHIBIT C
REMARKETING ELECTION NOTICE
Southern California Public Power Authority
1160 Nicole Court
Glendora, CA 91740
Aron Energy Prepay 23 LLC
c/o J. Aron & Company LLC
200 West Street
New York, NY 10282
U.S. Bank Trust Company, National Association
2 Concourse Parkway, Suite 800
Atlanta, Georgia 30328
To the Addressees:
The undersigned, duly authorized representative of City of Anaheim (the " Purchaser"), is providing this notice (the “Remarketing Election Notice”) pursuant to the Clean Energy Purchase Contract, dated as of [_________], 2024 (the “Clean Energy Purchase Contract ”), between Southern California Public Power Authority and Purchaser. Capitalized terms used herein shall have the meanings set forth in the Clean Energy Purchase Contract.
Pursuant to Section 3.4(b) of the Clean Energy Purchase Contract , the Purchaser has elected to have its Base Quantity, for each Hour of the Reset Period commencing __________ and extending to and including ______________, remarketed beginning as of the commencement of such Reset Period. The resumption of deliveries of Base Quantities in any future Reset Period shall be in accordance with Section 3.4(b) of the Clean Energy Purchase Contract.
Given this [___] day of [_________], 20[__].
CITY OF ANAHEIM
By: __________________________
Name: ________________________
Title: _________________________
D-1
EXHIBIT D
FORM OF FEDERAL TAX CERTIFICATE
This Federal Tax Certificate is executed in connection with the Clean Energy Purchase Contract dated as of [_______], 2024 (the “Clean Energy Purchase Contract”), by and between the Southern California Public Power Authority (“Issuer”) and City of Anaheim (“Power Purchaser”).
Capitalized terms used and not otherwise defined herein shall have the meanings given to them in the Clean Energy Purchase Contract, in the Tax Certificate and Agreement, or in the Bond Indenture.
WHEREAS Power Purchaser acknowledges that Issuer is issuing the Bonds to fund the prepayment price under the Master Power Supply Agreement; and WHEREAS the Bonds are intended to qualify for tax exemption under Section 103 of the Internal Revenue Code of 1986, as amended; and
WHEREAS Power Purchaser’s use of Energy acquired pursuant to the Clean Energy Purchase Contract and certain funds and accounts of Power Purchaser will affect the Bonds’ qualification for such tax exemption.
NOW, THEREFORE, POWER PURCHASER HEREBY CERTIFIES AS FOLLOWS:
1. Power Purchaser is a municipal corporation organized and existing under the Laws of the State of California.
2. Power Purchaser will resell all of the Energy acquired pursuant to the Clean Energy Purchase Contract to its retail Energy customers within its service area, with retail sales in all cases being made pursuant to regularly established and generally applicable tariffs or under authorized requirements contracts. For purposes of the foregoing sentence, the term “service area” means (x) the area throughout which Power Purchaser, Power Purchaser’s municipal wholesale customers, or a joint action agency’s municipal customers, provided power transmission or distribution service at all times during the 5 -year period ending on December 31, 20[__], and from then until the date of issuance of the Bonds (the “Closing Date”), and (y) any area recognized as the service area of Power Purchaser under state or federal law.
3. The annual average amount during the testing period of Energy purchased (other than for resale) by customers of Power Purchaser who are located within the service area of Power Purchaser is [________] MWh. The maximum annual amount of Energy in any year being acquired pursuant to the Clean Energy Purchase Contract is [_______] MWh. The annual average amount of Energy which Power Purchaser otherwise has a right to acquire as of the Closing Date (including rights to capacity to generate electricity, whether owned, leased or otherwise contracted for) is [________] MWh. The sum of (a) the maximum amount of Energy in any year being acquired pursuant to the Clean Energy Purchase Contract, and (b) the amount of Energy that Power
D-2
Purchaser otherwise has a right to acquire (including rights to capacity to generate electricity, whether owned, leased or otherwise contracted for) in the year described in the foregoing clause (a), is [________] MWh. Accordingly, the amount of Energy to be acquired under the Clean Energy Purchase Contract by Power Purchaser, supplemented by the amount of Energy otherwise available to Power Purchaser as of the Closing Date, during any year does not exceed the sum of (i) [___]% of the annual average amount during the testing period of Energy purchased (other than for resale) by customers of Power Purchaser who are located within the service area of Power Purchaser; and (ii) the amount of Energy to be used to transport the Energy purchased pursuant to the Master Power Supply Agreement to Power Purchaser during such year. For purposes of this paragraph 3, the term "testing period" means the 5 calendar years ending December 31, 2023, and the term "service area" means (x) the area throughout which Power Purchas er provided power transmission or distribution service at all times during the testing period, (y) any area within a county contiguous to the area described in (x) in which retail customers of Power Purchaser are located if such area is not also served by another utility providing power services, and (z) any area recognized as the service area of Power Purchaser under state or federal law.
4. Power Purchaser expects to pay for Energy acquired pursuant to the Clean Energy Purchase Contract solely from funds derived from its power distribution operations. Power Purchaser expects to use its current net revenues to pay for current Energy acquisitions. There are no funds or accounts of Power Purchaser or any person who is a related Person to Power Purchaser in which monies are invested and which are reasonably expected to be used to pay for Energy acquired more than one year after it is acquired. No portion of the proceeds of the Bonds will be used directly or indirectly to replace funds of Power Purchaser or any persons who are related Persons to Power Purchaser that are or were intended to be used for the purpose for which the Bonds were issued.
_______________, 2024
CITY OF ANAHEIM
By: __________________________
Name: ________________________
Title: _________________________
E-1
EXHIBIT E
OPINION OF COUNSEL
Southern California Public Power Authority
Glendora, CA
Aron Energy Prepay 23 LLC
New York, NY
U.S. Bank Trust Company, National Association
Atlanta, Georgia
Goldman Sachs & Co. LLC
New York, NY
[Swap Counterparty]
[City, State]
Re: Clean Energy Purchase Contract between City of Anaheim and Southern California Public Power Authority, dated as of [____], 2024
Ladies and Gentlemen:
We are Counsel to City of Anaheim (“Purchaser”). Purchaser is a Purchaser in the Clean Energy Project undertaken by Southern California Public Power Authority (“Issuer”). We are furnishing this opinion to you in connection with t he Clean Energy Purchase Contract between Issuer and Purchaser dated as of [____], 2024 (the “Clean Energy Purchase Contract”).
Unless otherwise specified herein, all terms used but not defined in this opinion shall have the same meaning as is ascribed to them in the Clean Energy Purchase Contract.
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following:
(a) The Constitution a nd la ws of t he State of California (the “St ate”) includin g, as applicable, acts, ordinances, certificates, artic les, charters, bylaws, and agreements pursuant to which Purchaser was created and by which it is governed; (b) Resolution No. [ __], duly adopted by Purchas er on [__________ _] (the “Resolution”) and certified as true and correct by certificate, authorizing Purchaser to execute and deliver the Supply Contract;
(c) A copy of the Clean Energy Purchase Contract executed by Purchaser; and
E-2
(d) All outstanding instruments relating to bonds, notes, or other indebtedness of or relating to Purchaser and Purchaser’s electric utility system.
We have also examined and relied upon originals or copies, certified or otherwise authenticated to our satisfaction, of such records, documents, certificates, and other instruments, and made such investigations of law, as in our judgment we have deemed necessary or appropriate to enable us to render the opinions expressed below.
Based upon the foregoing, we are of the opinion that:
1. Purchaser is a public agency of the State of California, duly organized and validly existing under the laws of the State and has the power and authority to own its properties, to carry on its business as now being conducted, and to enter into and to perform its obligations under t he Clean Energy Purchase Contract.
2. The execution, delivery, and performance by Purchas er of t he Clean Energy Purchase Contract have been duly authorized by the governing body of Purchas er and do not and will not require, subsequent to the execution of the Clean Energy Purchase Contract by Purchaser, any consent or approval of the governing body or any officers of Purchaser.
3. The Clean Energy Purchase Contract is the legal, valid, and binding obligation of Purchaser, enforceable in accordance with its terms, except as such enforceability may be subject to (i) the exercise of judicial discretion in accordance with general principles of equity and (i i) bankruptcy, insolvency, reorganization, moratorium, and other simil ar laws affecting creditors ’ rights heretofore or hereafter enacted, to the extent constitutionally applicable.
4. No approval, consent , or authorization of any governmental or public agency, authority, commission or person, or, to our knowledge, of any holder of any outstanding bonds or other indebtedness of Purcha ser, is required with respect to the execution, delivery, and performance by Purchaser of the Clean Energy Purchase Contract or Purchaser’s participation in the transactions contemplated thereby other than those approvals, consents , and/or authorizations that have already been obtained.
5. The authorization, execution, and delivery of the Clean Energy Purchase Contract and compliance with the provisions there of (a) will not conflict with or constitu te a breach of, or default under, (i) any instrument relating to the organization, existence, or operation of Purchaser, (ii) any ruling, regulation, ordinance, judgment, order, or decree to which Purchaser (or any of its officers in their respective capaciti es as such) is subject or (iii) any provision of t he laws of t he State relating to Purchaser and its affairs, a nd (b) to our knowledge will not result in, or require the creation or imposition of, any lien on any of the properties or revenues of Purchas er pursuant to any of the foregoing.
6. Payments to be made by Purchaser under the Clean Energy Purchase Contract shall constitute operating expenses of Purcha ser’s electric utility system payable solely from the revenues and other available funds of Purcha ser’s electric utility system as a cost of purchas ed
E-3
electricity. The application of the revenues and other available funds of Purchaser’s electric utility system to make such payments is not subject to any prior lien, encumbrance, or other restriction.
7. As of the date of this opinion, to the best of our knowledge, after due inquiry, there is no pending or threatened action or proceeding at law or in equity or by any cour t, government agency, public board, or body affecting or questioning the existence of Purchas er or the titles of its officers to their respective offices or affecting or questioning the legality, validity, or enforceability of the Clean Energy Purchase Contract, nor to our knowledge is there any basis therefor.
This opinion is rendered solely for the use and benefit of the addressees listed above in connection with t he Clean Energy Purchase Contract and may not be relied upon other than in connection with the transactions contemplated by the Clean Energy Purchase Contract, or by any other person or entity for any purpose whatsoever, nor may this opinion be quoted in whole or in part or otherwise referred to in any document or delivered to any oth er person or entity, without the prior written consent of the undersigned.
Very truly yours,
F-1
EXHIBIT F
ASSIGNMENT OF ASSIGNABLE POWER CONTRACTS
1. General Requirements. Assigned Rights and Obligations under an Assignable Power Contract may only be assigned under this Exhibit F if the following requirements are satisfied or waived by J. Aron and Issuer:
1.1. T he seller under such Assignable Power Contract (the “ APC Party”) either (i) has a long- term senior unsecured credit rating that is “Baa3” or higher from Moody’s Investor’s Service, Inc. (or any successor to its credit rating service operation), “BBB -” or higher from Standard & Poor’s Global Ratings (or any successor to its credit rating service operation) or “BBB -” or higher from Fitch Ratings, Inc. (or any successor to its credit rating service operation), (ii) provides alternative credit support that is reasonably satisfactory to J. Aron or (iii) otherwise provides evidence of its creditworthiness that is reasonably satisfactory to J. Aron.
1.2. The APC Party can satisfy J. Aron’s internal requirements as they relate to “know your customer” rules, policies and procedures, anti -money laundering rules and regulations, Dodd-Frank Act, Commodity Exchange Act, Patriot Act and similar rules, regulations , requirements and corresponding policies.
1.3. The APC Party is organized in the United States and in a jurisdiction that does not present adverse tax consequences to J. Aron or Issuer in connection with such proposed assignment.
1.4. J. Aron, Issuer and the APC Party have agreed on an Assignment Schedule, which shall be (x) attached to the applicable Assignment Agreement and (y) shall be subject to Purchaser’s prior approval.
1.5. J. Aron, Issuer, and the applicable APC Party have agreed on and executed an Issuer Assignment Agreement for such assignment, which Issuer Assignment Agreement shall be subject to Purchaser’s prior approval.
1.6. The contract price (in $/MWh) payable by Purchaser under the applicable Assignable Power Contract (the “APC Contract Price”) is a fixed price unless Issuer, Purchaser and J. Aron agree, each in their sole discretion, to appropriate changes to the relevant documents to accommodate a floating APC Contract Price. For purposes of this Exhibit F, a “fixed price” shall be deemed to include any price that is fixed but for a periodic escalation, whether pre-determined or by reference to a price index, provided that the Base Quantity Reductions required to reflect any index-based escalation shall be made promptly following the time that such index is available.
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1.7. If the Assignable Power Contract is unit-contingent, then:
1.7.1. The Applicable Project (as defined below) is reasonably expected to be able to generate P99 Generation (as defined below), as determined by J. Aron in its reasonable discretion.
1.7.2. The Applicable Project (as defined below) has generated the Assigned Prepay Quantity (as defined below) in each Month since commencing commercial operation.
1.8. Rights and obligations under Assignable Power Contracts that may be assigned pursuant to this Exhibit F include those under power purchase agreements under which (i) Issuer is the buyer and is purchasing all or a portion of the products thereunder for redelivery to Purchaser or (ii) Purchaser is the buyer, provided that in the case of power purchase agreements described in clause (ii) Purchaser must assign its right, title and interest in and to assigned Product thereunder to Issuer pursuant to an Assignment Agreement substantially in the form attached as Annex II to this Exhibit F a (“Purchaser Assignment Agreement”) to enable Issuer to further assign its right, title and interest thereunder to J.
Aron.
2. P roposed Assignment . Purchaser, on behalf of the Issuer, may propose an assignment of Assigned Rights and Obligations under Article VI of the Clean Energy Purchase Contract by delivering the following items to Issuer and to J. Aron:
2.1. A written notice of the proposed assignment signed by Purchaser.
2.2. A true and complete copy of the Assignable Power Contract under which such Assigned Rights and Obligations would arise.
2.3. Evidence reasonably satisfactory to Issuer and J. Aron that all authorizations, consents, approvals, licenses, rulings, permits, exemptions, variances, orders, judgments, decrees, declarations of or regulations by any Government Agency necessary in connect ion with the transactions contemplated by the Assignable Power Contract and the assignment of the Assignable Power Contract to J. Aron have been obtained and are in full force and effect.
2.4. Such additional information as Issuer and J. Aron may reasonably request regarding the Assignable Power Contract and the APC Party.
2.5. If the Assignable Power Contract is unit-contingent, then:
2.5.1. A description and information of the applicable project to which the Assignable Power Contract applies (the “Applicable Project ”), including but not limited to information on the location, interconnection(s), and operating and compliance history of Applicable Project.
2.5.2. A report from a nationally recognized consultant in the energy industry that is reasonably acceptable to Issuer and J. Aron showing the “P99” forecasted
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generation (“ P99 Generation ”) and “P50” forecasted generation (“P50 Generation”) of the Applicable Project for the entire Assignment Period, as the terms P99 and P50 are commonly used in the renewable energy industry, to the extent readily available, and monthly historical generation and meteorological data of the Applicable Project dating back to the commercial operation date.
2.6. Such additional information as Issuer and J. Aron may reasonably request regarding the Assignable Power Contract and the APC Party.
Following Issuer’s and J. Aron’s receipt of such information, Purchaser and Issuer will, and J.
Aron has agreed in the Electricity Sale and Service Agreement to, (i) negotiate in good faith with one another regarding a potential Assignment Schedule, with the initial draft of such Assignment Schedule to be developed by J. Aron, and (ii) negotiate in good faith with one another and the APC Party regarding an Issuer Assignment Agreement, in each case related to the proposed assignment.
If such Assignment Schedule and Issuer Assignment Agreement are agreed to by the representative parties thereto, the applicable parties will execute such Issuer Assignment Agreement (with the Assignment Schedule attached thereto) to be effective upon the assignment of the Assigned Rights and Obligations from Issuer to J. Aron pursuant to the Issuer Assignment Agreement. J. Aron has agreed to act in good faith in considering proposed assignments that meet the criteria set forth in this Exhibit F, in accordance with the provisions set forth in the Electricity Sale and Service Agreement. For the avoidance of doubt, Purchaser acknowledges that J. Aron will not be required to execute any Issuer Assignment Agreement or Assignment Schedule, or otherwise accept any Assigned Rights and Obligations unless the APC Party (i) satisfies J. Aron’s internal requirements as they relate to “know your customer” rules, policies and procedures, anti-money laundering rules and regulations, Dodd- Frank Act, Commodity Exchange Act, Patriot Act and similar rules, regulations, requirements and corresponding policies, (ii) is organized in the United States, and (iii) satisfies all other requirements in Section 1 of this Exhibit F.
In addition to the foregoing:
3. Assignment Schedule. In connection with each assignment, an “Assignment Schedule” will be prepared in the form attached hereto as Appendix 1 to Annex I and Annex II (with such changes as agreed by the parties in their sole discretion), must be attached to the applicable Issuer Assignment Agreement and must include each of the following in respect of the applicable Assigned PPA:
3.1. T he term of such Assigned Rights and Obligations (the “ Assignment Period”) shall have the meaning specified in each applicable Issuer Assignment Agreement and shall (i) end not later than (a) the end of the delivery period under the Assignable Power Contract and (b) the end of the Delivery Period under this Agreement, (ii) not commence any earlier than sixty (60) days after Purchaser’s original notice under Section 2.1 of this Exhibit F , and (iii) have a primary term that is not less than 18 Months in duration (provided, for the avoidance of doubt, the primary term references the term of the Assignment Period and not the term of the Assignable Power Contract).
3.2. If the Assignable Power Contract is unit -contingent, then a description of the Applicable Project.
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3.3. If the Assignable Power Contract is unit -contingent, then the P99 Generation and P50 Generation of the Applicable Project and, if the Assigned Quantities that Purchaser wishes to include in the Assigned Rights and Obligations are less than the total P99 forecasted generation available from the Applicable Project, the Assigned Quantities as so limited.
The P99 Generation and P50 Generation will be mutually agreed upon by Issuer and J.
Aron based on the information provided pursuant to Section 2 of this Exhibit F; provided that, if Issuer and J. Aron cannot reach mutual agreement, then the P99 and P50 generation shall be determined based on (a) the forecast set forth in the report delivered under Section
2.5.2 of this Exhibit F, if applicable, and otherwise (b) the lowest Month of generation in the preceding five year period.
3.4. T he “Assigned Prepay Quantity” means, for each Month of an Assignment Period for each Assigned PPA, a quantity of Assigned Product agreed upon by J. Aron, Issuer and Purchaser, which Assigned Prepay Quantity, if the Assignable Power Contract is unit contingent or for an as-generated Product, will be lesser for each Month of the Assignment Period of (i) the P99 Generation of the Applicable Project for such Month, if the Assignable Power Contract is unit -contingent, and (ii) the Assigned Quantities as described in Section 3.3 of this Exhibit F for such Month; provided that the Assigned Prepay Quantity for each Month may not exceed the limit expressed in the proviso to Section 3.5 of this Exhibit F.
3.5. An updated Exhibit A-1 to the Clean Energy Purchase Contract reflecting a reduction in Base Quantity for each Delivery Hour during the Assignment Period after giving effect to the Assignment Schedule (each, a “Base Quantity Reduction”), which Base Quantity Reduction for each Delivery Hour (which will be determined by dividing the Assigned Prepay Quantity for the applicable Month by the number of Delivery Hours in such Month) will equal (i) the Assigned Prepay Quantity for such Assignable Power Contract and Delivery Hour, multiplied by (ii) the result of (A) the APC Contract Price applicable under such Assignable Power Contract for such Delivery Hour, divided by (B) the Fixed Price; provided that if such Base Quantity Reduction for any Delivery Hour would result in a Base Quantity of less th an zero, then the Assigned Prepay Quantity under such Assignable Power Contract for such Delivery Hour will be reduced to the closest whole MWh such that the Base Quantity is not reduced below zero.
3.6. T
he APC Contract Price under such Assignable Power Contract, which as set forth in Section 1.7 of this Exhibit F must be a fixed price unless Issuer, Purchaser and J. Aron agree to appropriate changes to the relevant documents to accommodate a floating APC Contract Price.
3.7. The Assigned Delivery Point for all Assigned Energy under such Assignable Power Contract.
3.8. The Assigned Product included in the Assigned Rights and Obligations to be assigned, which Assigned Product may not include any Product other than (a) Energy, (b) RECs, and (c) other product included within the sale of Energy and not separately delivered from Energy, provided that the APC Contract Price under an Assignable Power Contract must be inclusive of any amounts due in respect of all Assigned Product s to be delivered
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thereunder, provided furthermore that Assigned Products may not in any case include capacity.
4. Miscellaneous. Notwithstanding anything herein to the contrary, the requirements in this Exhibit F relating to P99 Generation, P50 Generation and “Applicable Project” shall only apply to Assigned Quantities that provide for as generated Energy.
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ANNEX I
FORM OF ISSUER ASSIGNMENT AGREEMENT
This Limited Assignment Agreement (this “Assignment Agreement”) is entered into as of [____] by and among [____], a [____] (“ PPA Seller”), 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”), and J. Aron & Company LLC, a New York limited liability company (“ J. Aron”).
This Assignment Agreement relates to that c ertain Renewable Power Purchase and Sale Agreement entered into by and between City of Anaheim, a municipal corporation organized and existing under the laws of the State of California (“ Anaheim”) and PPA Seller on [____] as amended from time to time (the “ PPA”), and to the Limited Assignment Agreement (B owerman Power Project) of even date herewith (the “Anaheim Assignment Agreement”) among PPA Seller; SCPPA; and Anaheim , transferring to SCPPA 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, SCPPA and J. Aron (the “Parties” hereto; each is a “Party”) agree as follows:
1. Limited Assignment.
(a) SCPPA hereby assigns, transfers and conveys to J. Aron, and J. Aron hereby accepts and assumes, all of SCPPA’s rights (“ Assigned Product Rights ”) and obligations under the Anaheim Assignment Agreement to purchase, receive, and pay for the products described in Appendix 1 (“ Assigned Products ”) during the Assignment Period (as defined in Appendix 1), as such rights are limited and further described in Section 1 of the Anaheim Assignment Agreement and Appendix 1 to the Anaheim Assignment (the “ Assigned Product Rights”). All Assigned Products shall be delivered pursuant to the terms and conditions of this Assignment Agreement during the Assignment Period as defined in Appendix 1.
All other rights of Anaheim under the PPA are expressly reserved for Anaheim as provided in the Anaheim Assignment Agreement.
(1) SCPPA hereby assigns to J. Aron, and J. Aron assumes, 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 J. Aron 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 t he Parties acknowledge and agree that PPA Seller will be obligated to deliver a single , consolidated Payment Invoice (as defined in the PPA) t o Anaheim during the Assignment Period and shall deliver simultaneously a copy thereof to J. Aron and SCPPA. All other obligations of Anaheim under the PPA are expressly retained by Anaheim as provided in the Anaheim Assignment Agreement. T he Parties acknowledge that, to the extent J. Aron fails to pay for any Assigned Products by the
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due date for payment set forth in the PPA, Anaheim has agreed in the Anaheim Assignment Agreement that it will remain responsible for all payments due to PPA Seller pursuant to the Delivered Product Payment Obligation within five (5) Business Days (as defined in the PPA) of receiving N otice (as defined in the PPA) of non- payment from PPA Seller;
(2) All scheduling of Assigned Products under the PPA shall continue to take place between Anaheim and PPA Seller pursuant to the terms of the PPA and the Anaheim Assignment Agreement; provided that (i) title to Assigned Products will pass from PPA Seller to J. Aron upon PPA Seller’s delivery in accordance with the PPA; (ii) Anaheim is authorized by J. Aron to and shall act as the Scheduling Coordinator, as that term is defined in the PPA, with regard to scheduling Assigned Products; (iii) SCPPA will provide copies to J. Aron of any Notice (as defined in the PPA) 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 PPA Seller and, as applicable, any collateral assignee or promptly after receipt thereof from PPA Seller; (iv) PPA Seller will provide copies to J. Aron of forecasts delivered to Anaheim in accordance with Section [__] (and any updates to such forecasts); (v) To the extent such additional notices, reports and updates are provided, PPA Seller will provide copies to J. Aron of all Payment Invoices and supporting data that it provides to Anaheim pursuant to Section [__] and Exhibit E 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 Payment Invoice will be resolved solely between Anaheim and PPA Seller, and therefore PPA Seller will not be obligated to deliver copies of any communications relating thereto to J. Aron; and (vi) To the extent such additional notices, reports and updates are provided, Anaheim and PPA Seller, as applicable, will provide copies to J. Aron of any other information reasonably requested by J. Aron 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 Generating Facility (as defined in the PPA) and through scheduling of ISTs (as defined below) as provided in the Anaheim Assignment Agreement; 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.
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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. “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 acknowledges that (i) the Assigned Products will be re -delivered through one or more intermediaries, including SCPPA, to Anaheim; and (ii) in the event that Anaheim fails to pay SCPPA for any Assigned Products, the receivables owed by Anaheim to SCPPA for such Assigned Products (“ Anaheim Receivables”) may be transferred to J.
Aron. To the extent any such Anaheim Receivables are transferred to J. Aron, J. Aron may transfer such Anaheim Receivables to PPA Seller and apply the face amount thereof as a reduction to any Delivered Product Payment Obligation. Thereafter, PPA Seller shall be entitled to pursue collection on such Anaheim Receivables directly against Anaheim.
(c) Each of SCPPA and PPA Seller hereby consents and agrees to the assignment, transfer , and conveyance described in clauses (a) and (b) above, and J. Aron hereby accepts the same, subject to the terms and limitations of this Assignment Agreement.
(d) 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 Seller’s 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 J. Aron or SCPPA to each of the other Parties hereto;
(2) delivery of a written N otice of termination by PPA Seller to J. Aron and SCPPA following any failure to pay when due any amounts owed to PPA Seller pursuant to the Delivered Product Payment Obligation, and such failure continues for five (5) Business Days (as defined in the PPA) following receipt by such Parties of written Notice thereof;
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(3) delivery of a written Notice by PPA Seller or SCPPA to each of the other Parties to this Agreement if any of the events described in Section [__] (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 J. Aron or SCPPA to each of the other Parties to this Agreement if any of the events described in Section [__](bankruptcy) of the PPA occurs with respect to 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 N otice is delivered if termination is pursuant to clause 2.(a)(1) or 2.(a)(2) above. A ll Assigned Rights and Obligations shall immediately revert to Anaheim, without further action by the Parties, upon the early termination of the Assignment Period, provided that (i) J. Aron shall remain responsible for the Delivered Product Payment Obligation with respect to any Assigned Products delivered to J. Aron 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 Anaheim Assignment Agreement, and, in each case, all 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) J. Aron shall remain responsible for the Delivered Product Payment Obligation with respect to any Assigned Products delivered by PPA Seller 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. PPA Seller represents and warrants to J. Aron that (a) the PPA is in full force and effect; (b) no known event or circumstance presently exists that would give either PPA Seller or Anaheim the right to terminate the PPA or suspend performance thereunder; and (c) all of its respective obligations under the PPA required to be performed on or before the date hereof have been fulfilled. PPA Seller further represents to SCPPA and J. Aron that it has secured all known consents to this Assignment Agreement that may be required by the PPA, any agreement referenced therein, or any assignment of its rights thereunder.
4. Miscellaneous. Sections [__] (Limitations of Liabilities), Sections [__] (Governing Law), [__] (amendments), (provided that no consent or approval by SCPPA or J. Aron shall be required in order to amend the PPA) [__] (waivers), [__] (binding effect), [__] (counterparts), and [__] (good faith) of the PPA are incorporated by reference into this Assignment Agreement, mutatis mutandis, as if fully set forth herein.
5. Limited Obligation . Notwithstanding anything to the contrary herein, all obligations of SCPPA under this Assignment Agreement, including without limitation all obligations to make
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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 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 other Party, to change its list of notice recipients and addresses set forth below. Notwithstanding the foregoing, any Party may at any time notify the other Parties that any notice, demand or request to it must be provided by email transmission for a specified period of time or until further notice, and any communications delivered by means other than email transmission during the specified period of time shall be ineffective
If to SCPPA:
Southern California Public Power Authority
1160 Nicole Court
Glendora, CA 91740
Email: ___________________
If to J. Aron:
J. Aron & Company LLC
200 West Street
New York, New York 10282-2198
Email: [email protected]
7. U.S. Resolution Stay Provisions. The Parties hereby confirm that they are adherents to the ISDA 2018 U.S. Resolution Stay Protocol (“ISDA U.S. Stay Protocol”), the terms of the ISDA U.S. Stay Protocol are incorporated into and form a part of this Assignment Agreement, and for
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the purposes of such incorporation, (i) J. Aron shall be deemed to be a Regulated Entity, (ii) each of SCPPA and PPA Seller shall be deemed to be an Adhering Party, and (iii) this Assignment Agreement shall be deemed a Protocol Covered Agreement. In the event of any inconsistencies between this Assignment Agreement and the ISDA U.S. Stay Protocol, the ISDA U.S. Stay Protocol will prevail.
8. Governing Law, Jurisdiction; Waiver of Jury Trial; Limited Obligation.
(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 [____].
(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.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the Parties have executed this Assignment Agreement effective as of the date first set forth above.
[PPA SELLER]
By:
Name:
Title:
SOUTHERN CALIFORNIA PUBLIC POWER AUTHORITY
By:
Name:
Title:
J. ARON & COMPANY LLC
By:
Name:
Title:
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APPENDIX 1
Assignment Schedule
APC Contract Price: [____]
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: [____]
Further Information/Limitations: PPA Seller shall continue to transfer WREGIS Certificates associated with all RECs corresponding to all [Metered Amounts] under the PPA to Anaheim consistent with Section [___] 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 effective as of t he first day of the next calendar month, unless otherwise agreed. All Assigned Products delivered by PPA Seller to J. Aron shall be a sale made at wholesale, with J. Aron reselling all such Assigned Products.
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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
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ANNEX II
FORM OF PURCHASER ASSIGNMENT AGREEMENT
([PROJECT NAME])
This Limited Assignment Agreement (this “Assignment Agreement”) is entered into as of [____] by and among [____], a [____] (“PPA Seller”); 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 certain Renewable Power Purchase and Sale Agreement entered into by and between Anaheim and PPA Seller on [____], as amended from time to time (the “ PPA”), and to the Limited Assignment Agreement ([Project Name]) of even date herewith (the “SCPPA Assignment Agreement”) among PPA Seller; 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, 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 Seller will be obligated to deliver a single, consolidated Payment I nvoice (as defined in the PPA) 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 Seller pursuant to the Delivered Product Payment
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Obligation within five (5) Business Days (as defined in the PPA) of receiving Notice (as defined in the PPA) of non-payment from PPA Seller; (2) All scheduling of Assigned Products under the PPA shall continue to take place between Anaheim and PPA Seller pursuant to the terms of the PPA; provided that (i) title to Assigned Products will pass from PPA Seller to SCPPA or its assigns upon PPA Seller’s delivery 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 Products; (iii) Anaheim will provide copies to SCPPA and its as signs of any Notice (as defined in the PPA) 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 PPA Seller and, as applicable, any collateral assign ee or promptly after receipt thereof from PPA Seller; (iv) to the extent such additional notices, reports and updates are provided, PPA Seller will provide copies to SCPPA and its assigns of forecasts delivered to Anaheim in accordance with Section [__]), and Exhibit D of the PPA (and any updates to such forecasts ); (v) to the extent such additional notices, reports and updates are provided, PPA Seller will provide copies to SCPPA and its assigns of all Payment I nvoices and supporting data that it provides to Anaheim pursuant to Section [__] 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 Payment Invoice will be resolved solely between Anaheim and PPA Seller, and therefore PPA Seller will not be obligated to deliver copies of any communications relating thereto to SCPPA or its assigns; and (vi) Anaheim and PPA Seller, 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 Generating Facility (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.
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“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 hereby consents and agrees 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 Seller’s 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 Seller to Anaheim, SCPPA, and J. Aron following any failure to pay when due any amounts owed to PPA Seller pursuant to the Delivered Product Payment Obligation, and such failure continues for five (5) Business Days (as defined in the PPA) following receipt by such Parties of written Notice thereof;
(3) delivery of a written Notice by PPA Seller or Anaheim to each of the other Parties to this Agreement and J. Aron if any of the events described in Section [___] (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 Agreement and J. Aron if any of the events described in Section [___] (bankruptcy) of the PPA occurs with respect to 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,
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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 Products delivered to 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, all Assigned Rights and Obligations shall immediately revert to Anaheim, without furt her 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 by PPA Seller 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. PPA Seller and Anaheim represent and warrant to SCPPA and its assigns that (a) the PPA is in full force and effect; (b) no known event or circumstance presently exists that would give either PPA Seller or Anaheim the right to terminate the PPA or suspend performance thereunder; and (c) all of their respective obligations under the PPA required to be performed on or before the date hereof have been fulfilled. PPA Seller further represents to Anaheim, SCPPA , and its assigns that it has secured all known consents to this Assignment Agreement that may be required by the PPA, any agreement referenced therein, or any assignment of its rights thereunder.
4. Miscellaneous. Sections [__] (Limitations of Liabilities ), [__] (Governing Law), [__] (amendments) (provided that no consent or approval by SCPPA or J. Aron shall be required in order to amend the PPA) , [__] (waivers), [__] (binding effect), [__]) (counterparts), and [__] (good faith) 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 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
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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 other Party, to change its list of notice recipients and addresses set forth below.
If to SCPPA:
Southern California Public Power Authority
Attention:___________________________
1160 Nicole Court
Glendora, CA 91740
Email: ___________________
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
Attention: City Clerk Attention:
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 Seller:
[____]
[____]
[____]
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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 [____].
(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. [Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the Parties have executed this Assignment Agreement effective as of the date first set forth above.
[PPA SELLER]
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:
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APPENDIX 1
Assignment Schedule
APC Contract Price: [____]
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: [____]
Further Information/Limitations: PPA Seller shall continue to transfer WREGIS Certificates associated with all RECs corresponding to all [Metered Amounts] under the PPA to Anaheim consistent with Section [___] 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 effective as of t he first day of the next calendar month, unless otherwise agreed. All Assigned Products delivered by PPA Seller to SCPPA and its assigns shall be a sale made at wholesale, with SCPPA and its assigns reselling all such Assigned Products.
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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
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EXHIBIT G
COMMUNICATIONS PROTOCOL FOR BASE QUANTITIES
This Exhibit G (“ Communications Protocol”) addresses the Scheduling of Base Quantities to be delivered and received at the Base Delivery Point. It is intended to be attached to both the Master Power Supply Agreement and the Clean Energy Purchase Contract, each as defined below.
1. ADDITIONAL DEFINED TERMS
In addition to the terms defined in Article I of this Agreement , the following terms used in this Communications Protocol shall have the following meanings:
1.1. “A greement ” means (i) when this Communications Protocol is attached to the Master Power Supply Agreement, the Master Power Supply Agreement and (ii) when this Communications Protocol is attached to the Clean Energy Purchase Contract, the Clean Energy Purchase Contract.
1.2. “C lean Energy Purchase Contract” means that certain Clean Energy Purchase Contract dated as of [____________], 2024 by and between Issuer and Project Participant.
1.3. “D elivery Scheduling Entity” means Prepay LLC or a Person designated by Prepay LLC, as set forth in Attachment 4 hereto or in a subsequent written notice to Issuer and the Project Participant.
1.4. “I ssuer ” means Southern California Public Power Authority, a joint powers authority organized pursuant to the laws of the State of California.
1.5. “M aster Power Supply Agreement” means that certain Master Power Supply Agreement dated as of [____________], 2024 by and between Prepay LLC and Issuer that is specified as relating to the Clean Energy Purchase Contract with Project Participant.
1.6. “ Operational Nomination” has the meaning specified in Section 4.1.1.
1.7. “Prepay LLC” means Aron Energy Prepay 23 LLC, a Delaware limited liability company.
1.8. “P roject Participant” means City of Anaheim, a municipal corporation organized and existing under the Laws of the State of California.
1.9. “R eceipt Scheduling Entity” for any Delivery Point means the Project Participant, unless the Clean Energy Purchase Contract has been suspended or terminated, in which case the Receipt Scheduling Entity will be Issuer or a Person designated by Issuer for such Delivery Point in accordance with this Communications Protocol.
G-2
1.10. “Relevant Contract” means the Master Power Supply Agreement and the Clean Energy Purchase Contract.
1.11. “R elevant Party” means Issuer, Prepay LLC or the Project Participant.
1.12. “Relevant Third Party” means any Person that is (i) a Transmission Provider that will or is intended to transport Product to be delivered or received under the Agreement, (ii) an independent system operator or control area that coordinates the Scheduling of Product at the Base Delivery Point, (iii) Scheduling receipt of Product by Issuer or for the account of Issuer to the extent such Product has been delivered to Issuer or for the account of Issuer under the Master Power Supply Agreement, and (iv) delivering Product to Issuer or for the account of Issuer to the extent such Product is intended to be re -delivered ultimately to the Project Participant or for the account of the Project Participant under the Clean Energy Purchase Contract.
1.13. “S cheduling Entities ” means the Receipt Scheduling Entity and the Delivery Scheduling Entity.
2. AGREEMENTS OF RELEVANT PARTIES
Each Relevant Party that is a party to Relevant Contract to which this Communications Protocol is attached acknowledges that this Communications Protocol sets forth certain obligations that may be delegated to other Relevant Parties that are not parties to such Relevant Contracts. In connection therewith:
2.1 Reliance on Scheduling Entity. Each Relevant Party shall be entitled to rely exclusively on any communications or directions given by a Delivery Scheduling Entity or Receipt Scheduling Entity, in each case to the extent such communications are permitted hereunder.
2.2 Performance of Communications Protocol. Each Relevant Party to a Relevant Contract shall cause its counterparty to each other Relevant Contract to comply with the provisions of this Communications Protocol as the provisions apply to such counterparty to the extent required to perform the obligations of the Relevant Party under the Relevant Contract.
2.3 Third Party Beneficiaries. To the extent this Communications Protocol purports to give any Relevant Party (a “Beneficiary”) rights vis -à-vis any other Relevant Party (a “Burdened Party” ) with whom such Beneficiary does not have privity under a Relevant Contract, such Beneficiary shall be deemed to be a third party beneficiary of each Relevant Contract to which the Burdened Party is a party to the extent necessary or convenient to enforce the obligations of the Burdened Party under this Communications Protocol.
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2.4 Amendment of Relevant Contracts. No Relevant Party shall amend, waive or otherwise modify any provision of any Relevant Contract to which it is a party without the consent of each other Relevant Party whose rights or obligations would be materially and adversely affected by such amendment, waiver or modification as it relates to this Communications Protocol.
2.5 Amendment of Communications Protocol. No Relevant Party shall amend any provision of this Communications Protocol in a Relevant Contract without the consent of each other Relevant Party.
2.6 Waiver of Communications Protocol. No Relevant Party shall waive any provision of this Communications Protocol in a Relevant Contract without the consent of each other Relevant Party whose rights or obligations would be materially and adversely affected by such waiver.
3 DESIGNATION AND REPLACEMENT OF SCHEDULING ENTITIES
3.1 Designation of Delivery Scheduling Entity. Prepay LLC may designate a new Delivery Scheduling Entity upon thirty (30) days written notice to Issuer substantially in the form of Attachment 4 . Any Scheduling Entity designated in accordance with this Section 3.1 shall commence service at the beginning of a Month, unless mutually agreed in writing between Prepay LLC and Issuer.
3.2 A ssumption by Receipt Scheduling Entity. If any Delivery Scheduling Entity (other than Prepay LLC) persistently fails to perform its obligations as contemplated under this Communications Protocol, the Receipt Scheduling Entity may, by notice to Prepay LLC, require that Prepay LLC deal directly with the Receipt Scheduling Entity until a new Delivery Scheduling Entity is designated in accordance with this Section 3.1.
3.3 Scheduling Coordinator. Project Participant shall designate a scheduling coordinator for the purposes of accepting Base Product delivery at the Base Delivery Point through the scheduling of ISTs.
4 INFORMATION EXCHANGE AND COMMUNICATION BETWEEN ISSUER AND
PREPAY LLC
4.1 Communication of Operational Nomination Details.
4.1.1 Not later than three Days prior to each Day during which Base Product is required to be delivered under the Agreement , the Receipt Scheduling Entity for such Delivery Point may deliver an operational nomination in writing (the “Operational Nomination”) indicating any inability of a Project Participant to receive all of its Base Quantities during such Day, which Operational Nomination shall be without prejudice to any party’s rights
G-4
under the Relevant Contracts for failure to receive Base Quantities. If no changes to Base Quantities are so submitted, the Operational Nomination shall be deemed to nominate the full Base Quantities required to be delivered on a Day.
4.1.2 Not later than three Days prior to each Day during which Base Product is required to be delivered under the Agreement , the Delivery Scheduling Entity for such Delivery Point may revise the Operational Nomination to indicate any inability of Prepay LLC to deliver all Base Quantities during such Day, which revised Operational Nomination shall be without prejudice to any party’s rights under the Relevant Contracts for failure to deliver Base Quantities.
4.2 Event-specific Communications.
4.2.1 Remarketing Notices issued by Issuer under the Master Power Supply Agreement shall be substantially in the form of Attachment 2 hereto. Any such notices to remarket must be delivered directly to Prepay LLC and the Delivery Scheduling Entity.
4.2.2 Each Scheduling Entity shall notify Prepay LLC , Issuer and the Project Participant as soon as practicable in the event of: ( i) any deficiencies in Scheduling related to such Scheduling Entity; (ii) any deficiencies in Scheduling related to the other such Scheduling Entity; and (iii) any issues with Relevant Third Parties that that would reasonably be expected to create issues related to Product Scheduling under the Relevant Contract. 5 ACCESS AND INFORMATION
5.1 Verification of Product Scheduled. In addition to the delivery of and access to the records and data required pursuant to the Agreement , each Relevant Party agrees to provide relevant records from itself and other Relevant Third Parties necessary to document and verify Product Scheduled within and after the Month as needed to facilitate the Relevant Contracts.
5.2 View Rights. To the extent requested by a Delivery Scheduling Entity or Prepay LLC, the Receipt Scheduling Entities will use Commercially Reasonable Efforts to cooperate with the Delivery Scheduling Entity and Prepay LLC to ensure that Delivery Scheduling Entity and Prepay LLC has sufficient agency view rights from each such Scheduling Entity to allow Prepay LLC to view Base Product Scheduling at the Base Delivery Point.
G-5
6 NOTICES
Any notice, demand, request or other communication required or authorized by this Communications Protocol to be given by one Relevant Party to another Relevant Party shall be in writing, except as otherwise expressly provided herein. It shall either be sent by facsimile (with receipt confirmed by telephone and electronic transmittal receipt), courier, or personally delivered (including overnight delivery service) to the representative of the other Relevant Party designated in Attachment 1 hereto. Any such notice, demand, or request shall be deemed to be given (i) when sent by facsimile confirmed by telephone and electronic transmittal receipt or (ii) when actually received if delivered by courier or personal delivery (including overnight delivery service).
Each Relevant Party shall have the right, upon written notice to the other Relevant Parties, to change its address at any time, and to designate that copies of all such notices be directed to another Person at another address.
7 NO IMPACT ON CONTRACTUAL OBLIGATIONS
Except as expressly set forth herein or in an applicable Relevant Contract , nothing in this Communications Protocol nor any Relevant Party ’s actions or inactions hereunder shall have any impact on any Relevant Party ’s rights or obligations under the Relevant Contracts.
8 ATTACHMENTS
Attachment 1 - Key Personnel
Attachment 2 - Remarketing Notice Form
Attachment 3 - Designation of Alternate Base Delivery Points Form Attachment 4 - Designation of Scheduling Entities Form
G-6
Attachment 1
Key Personnel
Prepay LLC Marketing Personnel:
Kenan Arkan
Sales and Trading
Telephone: (212) 357-2542
[email protected]
Prepay LLC Scheduling Personnel:
Scheduling Team
Email: [email protected]
Direct Phone: (212) 902-8148
Fax: 212.493.9847
Carly Norlander
ICE Chat: cnorlander1
Email: [email protected]
Direct Phone: (403) 233-9299
Fax: (212) 493-9847
Other Prepay LLC Personnel:
Eric Hudson
Telephone: (212) 855-0880
[email protected]
Patricia Hazel
Telephone: (212) 855-0880
[email protected]
Andres E. Aguila
General Notices
Telephone: (212) 855-0608
Fax: (212) 291-2124
[email protected]
Issuer Personnel:
[Attention: Executive Director
Telephone: (626) 793-9364
Fax: (626) 793-9461
Email: [email protected]]
Project Participant Personnel:
[Attention: City Clerk
Telephone: (714) 765-5166
Facsimile: (714) 765-4105]
G-7
Attachment 2
Remarketing Notice Form
Date: [_____________]
To: Prepay LLC Scheduling
From: [City of Anaheim Scheduling]
This notice is being delivered pursuant to that certain Master Power Supply Agreement (the “Prepaid Agreement”) dated as of [_______________], 2024 by and between Aron Energy Prepay 23 LLC (“Prepay LLC”) and Southern California Public Power Authority, a joint powers authority organized pursuant to the laws of the State of California (“Issuer”), and relates to the Clean Energy Purchase Contract (the “Clean Energy Purchase Contract”) dated as of [_______________], 2024 by and between Issuer and City of Anaheim (“Project Participant”). Capitalized terms not defined herein are defined in the Prepaid Agreement.
Check the box to indicate type of Remarketing Notice ( The numbers of the Primary (“ P”) and Alternate (“ A”) Delivery Points below correspond to those same Primary and Alternate Base Delivery Points set forth in Exhibit A-1 of the Agreement, or as may be designated by the Parties from time to time):
Monthly Remarketing Notice:
Month(s) for which remarketing is requested: _____________________, 20__ through _______________________, 20__.
Pursuant to [Section 3(b) of Exhibit C] of the Clean Energy Purchase Contract, Project Participant requests that Prepay LLC remarket in such M onth(s) the following Base Quantities of Product required to be delivered at the following Delivery Points:
Delivery Point (P/A, #) MWh/ Hour for each Hour in the Month
Daily Remarketing Notice:
G-8
Hours for which remarketing is requested: _____________________, 20__ through _______________________, 20__.
Pursuant to [Section 3(c) of Exhibit C] of the Clean Energy Purchase Contract, Project Participant requests that Prepay LLC remarket for such Hours the following Base Quantities of Product required to be delivered at the following Delivery Point:
Delivery Point (P/A, #) MWh/Hour
Submitted by Project Participant:
City of Anaheim
By: _________________________
Name: _______________________
Title: ________________________
G-9
Attachment 3
Designation of Alternate Base Delivery Points Form
This designation is delivered pursuant to that certain Master Power Supply Agreement (the “Master Power Supply Agreement”) dated as of [_______________], 2024 by and between Aron Energy Prepay 23 LLC (“Prepay LLC”) and Southern California Public Power Authority, a joint powers authority organized pursuant to the laws of the State of California (“Issuer”) and the Clean Energy Purchase Contract (the “Clean Energy Purchase Contract”) dated as of [_______________], 2024 by and between Issuer and City of Anaheim (“Project Participant”).
Capitalized terms not defined herein are defined in the Master Power Supply Agreement and the Clean Energy Purchase Contract. [Project Participant and/or Issuer] hereby proposes the following Alternate Delivery Points for deliveries of Energy that would otherwise be made at the specified Primary Delivery Point:
ALTERNATE
DELIVERY POINT
PRIMARY
DELIVERY POINT
AFFECTED
COMMODITY
REFERENCE PRICE
PRICING POINT
ADDITIONAL
RESTRICTIONS
1 [e.g.
2 Vol. Limit:____
3 Time Limit:]___
(etc.)
Unless otherwise agreed among Prepay LLC, Issuer and Project Participant, an Alternate Delivery Point shall utilize the same Commodity Reference Price as the Primary Delivery Point it replaces or otherwise affects. Project Participant is not required to agree or accept this designation (or any change to the Commodity Reference Price) if it is being submitted by Issuer pursuant to the Master Power Supply Agreement only.
AGREED AND
ACCEPTED BY PREPAY
LLC:
(if required) AGREED TO
AND ACCEPTED BY
PROJECT
PARTICIPANT:
(if required) AGREED TO
AND ACCEPTED BY
ISSUER:
By:
Name:
Title:
By:
Name:
Title:
By:
Name:
Title:
G-10
Attachment 4
Designation of Scheduling Entities Form
This designation is being delivered pursuant to that certain Master Power Supply Agreement (the “Master Power Supply Agreement”) dated as of [_______________], 2024 by and between Aron Energy Prepay 23 LLC (“Prepay LLC”) and Southern California Public Power Authority, a joint powers authority organized pursuant to the laws of the State of California (“Issuer”) and relates to the Clean Energy Purchase Contract (the “Clean Energy Purchase Contract”) dated as of [_______________], 2024 by and between Issuer and City of Anaheim (“Project Participant”).
Capitalized terms not defined herein are defined in the Master Power Supply Agreement and Clean Energy Purchase Contract.
[If delivered by Project Participant:
Receipt Scheduling Entity:
Delivery Point: ________________________
Effective Date(s) of Service of Receipt Scheduling Entity (full Months only):
________________, ______ to ________________, ______, if applicable
Notice Information for Receipt Scheduling Entity:
Name: ______________________________
Attention: ______________________________
Address: ______________________________
______________________________
Telephone: ______________________________
Fax: ______________________________]
[If delivered by Prepay LLC:
Delivery Scheduling Entity:
Delivery Point: ________________________
Effective Date(s) of Service of Delivery Scheduling Entity (full Months only):
________________, ______ to ________________, ______, if applicable
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Notice Information for Delivery Scheduling Entity:
Name: ______________________________
Attention: ______________________________
Address: ______________________________
______________________________
Telephone: ______________________________
Fax: ______________________________]
Submitted by:
[Project Participant or Prepay LLC]
By: _____________________________
Name: _____________________________
Title: _____________________________
H-1
EXHIBIT H
PRICING AND OTHER TERMS
Administrative Fee: $[0.50]/MWh
Delivery Period: The period beginning on and including [ ] and end ing at the end of the Day before [ ____]; provided that the
Delivery Period shall end immediately upon the termination of deliveries of Product under the Master Power Supply
Agreement pursuant to Article XVII thereof or the early termination of the Clean Energy Purchase Contract pursuant to Article XVII hereof.
Initial Reset Period: The period beginning at the beginning of the Day on [____] and ending at the end of the Day before [____], provided that the Initial Reset Period shall end immediately upon the termination of deliveries of Product under the Master Power Supply Agreement pursuant to Article XVII
thereof or the
early termination of the Clean Energy Purchase Contract pursuant to Article XVII hereof.
Minimum Discount
Percentage:
An Available Discount Percentage as determined under the Re-Pricing Agreement of [__] % for the Initial Reset Period and [__]% for each subsequent Reset Period.
Monthly Discount Percentage: For each Month of the Initial Reset Period, [___]%, and for each Month of any other Reset Period, the percentage
determined by the Calculation Agent pursuant to the Re - Pricing Agreement, exclusive of any Annual Refund; provided that the Monthly Discount Percentage shall be 0% following the end of the Delivery Period.