RESOLUTION NO. 2022-047
RESOLUTION OF THE CITY OF CORONA, CALIFORNIA,
APPROVING CONSENT AND AGREEMENT AND THE
FORM OF THE ESTOPPEL CERTIFICATE FOR THE
RENEWABLE POWER PURCHASE AGREEMENT WITH
RE GASKELL WEST 2 , LLC
WHEREAS, the City of Corona is authorized under various provisions of the California Constitution and the general laws of California (including, specifically, Article XI, Section 9(a) of the California Constitution, Public Utilities Code Section 10004, and Government Code section 39732(a)) to establish, purchase, and operate a public utility to furnish its inhabitants with, among other things, electricity; and
WHEREAS, the City of Corona operates a municipal electric utility (“City”); and WHEREAS, the City and RE Gaskell West 2, LLC, a Delaware limited liability company (“Seller”), entered into a Renewable Power Purchase and Sale Agreement (“PPA”) on October 27, 2021, pursuant to which Seller will (i) develop, construct, install, test, own, operate, and maintain a 29 megawatt (“MW”) solar photovoltaic electric power generation plant with an integrated 20 MWac/80MWh battery energy storage system located in Kern County, California known as the RE Gaskell West 2 Project, and (ii) sell the output of the RE Gaskell West 2 Project to the City; and WHEREAS, Seller is owned by Matrix Renewable US, LLC, a Delaware limited liability company; and
WHEREAS, in order to finance the development, construction, installation, testing, operation, and use of the Project, the Seller will soon enter into a financing agreement with Natixis, New York Branch, a New York corporation, (“Natixis”) to act as collateral agent for the benefit of various financial institutions.; and
WHEREAS, As collateral for this financing, the Seller must assign its rights under the PPA to Natixis; and
WHEREAS, pursuant to the terms of the PPA, Seller must obtain the City’s consent for the assignment of its right, title, and interest in the PPA to Natixis; and WHEREAS, Matrix Renewable US, LLC has entered into an Equity Capital Contribution Agreement (“ECCA”) with BAL Investment & Advisory, Inc. (“BALIA”), a Delaware corporation, where BALIA will make a tax equity investment in the tax equity partnership that will eventually own RE Gaskell West 2, LLC; and
WHEREAS, the ECCA requires that Matrix Renewable US, LLC provide BALIA with an Estoppel Certificate executed by the City making certain acknowledgements, representations, and warranties regarding the PPA.
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF CORONA, CALIFORNIA, AS FOLLOWS:
SECTION 1. The proposed Consent and Agreement by and among the City of Corona, Gaskell West, LLC, and Natixis New York Branch, attached hereto as Attachment A, is hereby approved and the City Council authorizes the City Manager, or designee, to execute such document.
SECTION 2. The proposed Estoppel Certificate, attached hereto as Attachment B is hereby approved as to form and the City Council authorizes the City Manager, or designee, to execute such document.
SECTION 3. Authorize the City Manager, or his designee, to negotiate, execute and authorize any further contracts, agreements, or certificates which are non-substantive or are otherwise in compliance with the City Council’s actions hereunder.
PASSED, APPROVED AND ADOPTED on the 1st day of June 2022.
Mayor of the City of Corona, California
ATTEST:
City Clerk of the City of Corona, California
CERTIFICATION
I, Sylvia Edwards, City Clerk of the City of Corona, California, do hereby certify that the foregoing Resolution was regularly passed and adopted by the City Council of the City of Corona, California, at an adjourned meeting thereof held on the 1st day of June 2022, by the following vote:
AYES:
NOES:
ABSTAINED:
ABSENT:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Corona, California, this 1st day of June 2022.
City Clerk of the City of Corona, California
(SEAL)
ATTACHMENT “A”
CONSENT AND AGREEMENT
AMONG
CITY OF CORONA,
GASKELL WEST, LLC,
AND
NATIXIS, NEW YORK BRANCH
[SEE ATTACHED 11 PAGES]
US-DOCS\129747327.4
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (“Consent and Agreement”) is entered into as of [ ], 2022, between the City of Victorville, a municipal corporation and Charter City organized and existing under the laws of the State of California (“Victorville”), Industry Public Utilities, a public agency organized under the laws of the State of California (“Industry”), the City of Corona, a municipal corporation organized and existing under the laws of the State of California (“Corona” and, together with Victorville and Industry, each a “Contracting Party” and collectively the “Contracting Parties”), and Natixis, New York Branch, as collateral agent (in such capacity, “Financing Provider”), for the benefit of various financial institutions (collectively, the “Secured Parties”) providing financing to RE Gaskell West 2 LLC, a Delaware limited liability company (“Seller”). Each Contracting Party, Seller, and the Financing Provider shall each individually be referred to as a “Party” and collectively as the “Parties”.
Recitals
A. Pursuant to that certain Renewable Power Purchase Agreement dated as of October 27, 2021 (as amended, modified, supplemented or restated from time to time, as including all related agreements, instruments and documents, collectively, the “Assigned Agreement”) between each Contracting Party and Seller, each Contracting Party has agreed to purchase energy from Seller.
B. The Secured Parties have provided, or have agreed to provide, to Seller financing pursuant to one or more agreements (the “Financing Documents”), and require that Financing Provider be provided certain rights with respect to the “Assigned Agreement” and the “Assigned Agreement Accounts,” each as defined below, in connection with such financing.
C. In consideration for the execution and delivery of the Assigned Agreement, each Contracting Party has agreed to enter into this Consent and Agreement for the benefit of Seller.
Agreement
1. Definitions. Any capitalized term used but not defined herein shall have the meaning specified for such term in the Assigned Agreement.
2. Consent. Subject to the terms and conditions below, each Contracting Party consents to and approves the pledge and assignment by Seller to Financing Provider pursuant to the Financing Documents of (a) the Assigned Agreement, and (b) the accounts, revenues and proceeds of the Assigned Agreement (collectively, the “Assigned Agreement Accounts”).
3. Limitations on Assignment. Financing Provider acknowledges and confirms that, notwithstanding any provision to the contrary under applicable law or in any Financing Document executed by Seller, Financing Provider shall not assume, sell or otherwise dispose of the Assigned Agreement (whether by foreclosure sale, conveyance in lieu of foreclosure or otherwise) unless, on or before the date of any such assumption, sale or disposition, Financing Provider or any third party, as the case may be, assuming, purchasing or otherwise acquiring the Assigned Agreement (a) cures any and all defaults of Seller under the Assigned Agreement which are capable of being cured and which are not personal to the Seller, (b) executes and delivers to each Contracting Party 2 U:\ADMIN\MICHELLE T\STAFF REPORTS\2022\06-01-22\KATIE_GASKELL WEST LOC REPLACEMENT CREDIT LETTER\LEN AND KATIE_GW-2 CONSENT & AGREEMENT CONSENSUS 5.5.22.DOCXUSDOCS\129747327.4 a written assumption of all of Seller’s rights and obligations under the Assigned Agreement in form and substance reasonably satisfactory each Contracting Party, (c) otherwise satisfies and complies with all requirements of the Assigned Agreement, (d) provides such tax and enforceability assurance as each Contracting Party may reasonably request, and (e) is a Permitted Transferee (as defined in the Assigned Agreement as in effect as of the date hereof). Financing Provider further acknowledges that the assignment of the Assigned Agreement and the Assigned Agreement Accounts is for security purposes only and that Financing Provider has no rights under the Assigned Agreement or the Assigned Agreement Accounts to enforce the provisions of the Assigned Agreement or the Assigned Agreement Accounts unless and until an event of default has occurred and is continuing under the Financing Documents between Seller and Financing Provider (a “Financing Default”), in which case Financing Provider shall be entitled to all of the rights and benefits and subject to all of the obligations which Seller then has or may have under the Assigned Agreement to the same extent and in the same manner as if Financing Provider were an original party to the Assigned Agreement.
Financing Provider may from time to time, following the occurrence of a Financing Default, notify each Contracting Party in writing of the identity of a proposed transferee of the Assigned Agreement, which proposed transferee may include Financing Provider, in connection with the enforcement of Financing Provider’s rights under the Financing Documents, and each Contracting Party shall, within thirty (30) business days of its receipt of such written notice, confirm to Financing Provider whether or not such proposed transferee is a Permitted Transferee (together with a written statement of the reason(s) for any negative determination); provided further, however, for the purposes of the foregoing, any proposed transferee shall be presumptively acceptable to each Contracting Party if such proposed transferee (or its ultimate parent) has (x) a tangible net worth of not less than $150,000,000 or a credit rating of at least BBB- from S&P, BBB- from Fitch or Baa3 from Moody’s and (y) has at least two (2) years of experience in the ownership or operations of power generation facilities similar to the Facility (as defined in the Assigned Agreement) or has retained a third-party with such experience to operate the Facility.
4. Cure Rights.
(a) Notice to Financing Provider by Contracting Parties. Each Contracting Party shall, concurrently with the delivery of any notice of an event of default under the Assigned Agreement (each, an “Event of Default”) to Seller (a “Default Notice”), provide a copy of such Default Notice to Financing Provider pursuant to Section 9(a) of this Consent and Agreement. In addition, Seller shall provide a copy of the Default Notice to Financing Provider the next business day after receipt from any Contracting Party, independent of any agreement of any Contracting Party to deliver such Default Notice.
(b) Cure Period Available to Financing Provider Prior to Any Termination by Contracting Parties. Upon the occurrence of an Event of Default, subject to (i) the expiration of the relevant cure periods provided to Seller under the Assigned Agreement, and (ii) Section 4(a) above, no Contracting Party shall terminate the Assigned Agreement unless it provides Financing Provider with notice of the Event of Default and affords Financing Provider an Additional Cure Period (as defined below) to cure such Event of Default. For purposes of this Agreement “Additional Cure Period” means (i) with respect to a monetary default, ten (10) days in addition to the cure period (if any) provided to Seller in the Assigned Agreement, and (ii) with respect to a 3 U:\ADMIN\MICHELLE T\STAFF REPORTS\2022\06-01-22\KATIE_GASKELL WEST LOC REPLACEMENT CREDIT LETTER\LEN AND KATIE_GW-2 CONSENT & AGREEMENT CONSENSUS 5.5.22.DOCXUSDOCS\129747327.4 non-monetary default, thirty (30) days in addition to the cure period (if any) provided to Seller in the Assigned Agreement.
(c) Failure to Deliver Default Notice. If a Contracting Party fails to deliver a Default Notice to Financing Provider as provided in Section 4(a), then the Financing Provider’s applicable cure period shall begin on the date on which notice of an Event of Default is delivered to Financing Provider by such Contracting Party.
(d) Extension for Foreclosure Proceedings. If possession of the Facility (as defined in the Assigned Agreement) is necessary for Financing Provider to cure an Event of Default, Financing Provider shall be allowed a reasonable additional period to complete such foreclosure proceedings, such period not to exceed one hundred eighty (180) days; provided, however, that Financing Provider shall provide a written notice to the applicable Contracting Party that it intends to commence foreclosure proceedings with respect to Seller within ten (10) business days of receiving a notice of such Event of Default from such Contracting Party. In the event Financing Provider or a Permitted Transferee succeeds to Seller’s interest in the Facility as a result of foreclosure proceedings, the Financing Provider, Permitted Transferee or a purchaser or grantee pursuant to such foreclosure shall be subject to the requirements of Section 3 of this Consent and Agreement.
(e) If Financing Provider or its designee, directly or indirectly, takes possession of, or title to, the Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure) after any rejection or termination of the Assigned Agreement in connection with Seller’s bankruptcy, promptly after the Contracting Parties’ Agent’s written request, Financing Provider must itself or must cause its designee to promptly enter into a new agreement with Contracting Parties having substantially the same terms as the Assigned Agreement for the remaining term thereof, provided that in the event a designee of Financing Provider, directly or indirectly, takes possession of, or title to, the Facility (including possession by a receiver or title by foreclosure or deed in lieu of foreclosure), such designee shall be approved by such Contracting Parties’ Agent, not to be unreasonably withheld.
5. Setoffs and Deductions. Each of Seller and Financing Provider agrees that each Contracting Party shall have the right to set off or deduct from payments due to Seller each and every amount due such Contracting Party from Seller whether or not arising out of or in connection with the Assigned Agreement. Financing Provider further agrees that it takes the assignment for security purposes of the Assigned Agreement and the Assigned Agreement Accounts subject to any defenses or causes of action any Contracting Party may have against Seller.
6. No Representation or Warranty. Seller and Financing Provider each recognizes and acknowledges that no Contracting Party makes any representation or warranty, express or implied, that Seller has any right, title, or interest in the Assigned Agreement or as to the priority of the assignment for security purposes of the Assigned Agreement or the Assigned Agreement Accounts. Financing Provider is responsible for satisfying itself as to the existence and extent of Seller’s right, title, and interest in the Assigned Agreement, and Financing Provider releases each Contracting Party from any liability resulting from the assignment for security purposes of the Assigned Agreement and the Assigned Agreement Accounts. 4 U:\ADMIN\MICHELLE T\STAFF REPORTS\2022\06-01-22\KATIE_GASKELL WEST LOC REPLACEMENT CREDIT LETTER\LEN AND KATIE_GW-2 CONSENT & AGREEMENT CONSENSUS 5.5.22.DOCXUSDOCS\129747327.4
7. Amendment to Assigned Agreement. Financing Provider acknowledges and agrees that the Contracting Parties may agree with Seller to modify or amend the Assigned Agreement, and that the Contracting Parties are not obligated to notify Financing Provider of any such amendment or modification to the Assigned Agreement. Financing Provider hereby releases each Contracting Party from all liability arising out of or in connection with the making of any amendment or modification to the Assigned Agreement.
8. Payments under Assigned Agreement. The Contracting Parties shall make all payments due to Seller under the Assigned Agreement from and after the date hereof to [Natixis, New York Branch, as depositary agent, to ABA No. [ ], Account No. [ ]]1, and Seller hereby irrevocably consents to any and all such payments being made in such manner. Each of Seller, each Contracting Party and Financing Provider agrees that each such payment by each Contracting Party to such depositary agent of amounts due to Seller from each Contracting Party under the Assigned Agreement shall satisfy such Contracting Party’s corresponding payment obligation under the Assigned Agreement.
9. Miscellaneous.
(a) Notices. All notices hereunder shall be in writing and shall be deemed received (i) at the close of business of the date of receipt, if delivered by hand or by facsimile or other electronic means, or (ii) when signed for by recipient, if sent registered or certified mail, postage prepaid, provided such notice was properly addressed to the appropriate address indicated on the signature page hereof or to such other address as a party may designate by prior written notice to the other parties, at the address set forth below:
2 If to Financing Provider: Natixis, New York Branch
Attn: Frederic Bouley
Address:
1251 Avenue of the
Americas, 5th Floor
New York, NY 10020
Email: [email protected]
If to Victorville: City of Victorville
Attn: Keith Metzler
Address: 14343 Civic Drive
Victorville, CA 92392
Telephone: 760.955.5030
Email: [email protected]
If to Industry: Industry Public Utilities
1 Note to draft: Depositary information to be confirmed. 2 Note to draft: Financing Provider’s notice information to be confirmed. 5 U:\ADMIN\MICHELLE T\STAFF REPORTS\2022\06-01-22\KATIE_GASKELL WEST LOC REPLACEMENT CREDIT LETTER\LEN AND KATIE_GW-2 CONSENT & AGREEMENT CONSENSUS 5.5.22.DOCXUSDOCS\129747327.4 Attn: Joshua Nelson
Address: 15625 Mayor Dave Way
City of Industry, CA 91784
Telephone: 626.333.2211
Email: [email protected]
If to Corona: City of Corona
Attn: Tom Moody
Address: 755 Public Safety Way
Corona, CA 92880
Telephone: 951.279.3660
Email: [email protected]
(b) No Assignment. This Consent and Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the Contracting Parties, and shall be binding on and inure to the benefit of the Financing Provider, the Secured Parties and their respective successors and Permitted Transferees and assigns under the Financing Documents. (c) No Modification. This Consent and Agreement is neither a modification of nor an amendment to the Assigned Agreement.
(d) Choice of Law. The parties hereto agree that this Consent and Agreement shall be construed and interpreted in accordance with the laws of the State of California, excluding any choice of law rules which may direct the application of the laws of another jurisdiction. (e) No Waiver. No term, covenant or condition hereof shall be deemed waived and no breach excused unless such waiver or excuse shall be in writing and signed by the party claimed to have so waived or excused.
(f) Buyers’ Agent. Contracting Parties agree that they shall provide written notice to the Financing Provider of the appointment of any Buyers’ Agent under and as defined in the Assigned Agreement, together with the contact details of such Buyers’ Agent, and shall provide Financing Provider with written notice of any change in any previously-appointed Buyers’ Agent.
Contracting Parties further agree that they shall provide each such Buyers’ Agent with a copy of this Consent and Agreement. Notwithstanding anything to contrary herein or in the Assigned Agreement, Buyers’ Agent shall be deemed to be bound by the provisions of this Consent and Agreement and, upon the request of the Financing Party, Contracting Parties shall cause Buyers’ Agent to provide Financing Party with a written acknowledgment of Buyers’ Agent’s receipt of this Consent and Agreement. Contracting Parties agree that Financing Provider may send copies of all notices or other communications pertaining to this Consent and Agreement to Buyers’ Agent and that notices, consents, communications or other actions taken by such Buyers’ Agent with regard to this Consent and Agreement shall be binding upon Contracting Parties; provided, 6 U:\ADMIN\MICHELLE T\STAFF REPORTS\2022\06-01-22\KATIE_GASKELL WEST LOC REPLACEMENT CREDIT LETTER\LEN AND KATIE_GW-2 CONSENT & AGREEMENT CONSENSUS 5.5.22.DOCXUSDOCS\129747327.4 however, that no amendment of this Consent and Agreement shall be effective unless signed by each Contracting Party, Financing Provider, and Seller. (g) Counterparts; Electronic Execution. This Consent and Agreement may be executed in one or more duplicate counterparts, and when executed and delivered by all the parties listed below, shall constitute a single binding agreement. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Consent and Agreement and the transactions contemplated hereby (including without limitation any amendments, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(h) No Third Party Beneficiaries. There are no third party beneficiaries to this Consent and Agreement.
(i) Severability. The invalidity or unenforceability of any provision of this Consent and Agreement shall not affect the validity or enforceability of any other provision of this Consent and Agreement, which shall remain in full force and effect. (j) Amendments. This Consent and Agreement may be modified, amended, or rescinded only by writing expressly referring to this Consent and Agreement and signed by all parties hereto.
[Signature Page Follows]
[Signature Page to PPA Consent]
IN WITNESS WHEREOF, each Contracting Party and Financing Provider has duly executed this Consent and Agreement as of the date first written above.
CITY OF VICTORVILLE
(as a Contracting Party)
By:
Name:
Title:
[Signature Page to PPA Consent]
INDUSTRY PUBLIC UTILITIES
(as a Contracting Party)
By:
Name:
Title:
[Signature Page to PPA Consent]
CITY OF CORONA
(as a Contracting Party)
By:
Name:
Title:
[Signature Page to PPA Consent]
NATIXIS, NEW YORK BRANCH,
as Financing Provider
By:
Name:
Title:
By:
Name:
Title:
[Signature Page to PPA Consent]
ACKNOWLEDGEMENT
The undersigned hereby acknowledges the Consent and Agreement set forth above, makes the agreements set forth therein as applicable to Seller, including the obligation of Seller to provide a copy of any Default Notice it receives from any Contracting Party to Financing Provider the next business day after receipt by Seller, and confirms that the Financing Provider identified above and the Secured Parties have provided or are providing financing to the undersigned.
RE GASKELL WEST 2 LLC,
a Delaware limited liability company,
as Seller
By:
Name:
Title:
ATTACHMENT “B”
ESTOPPEL CERTIFICATE
[SEE ATTACHED 9 PAGES]
-1-
FORM OF ESTOPPEL CERTIFICATE (THREE OFFTAKERS)
This Estoppel Certificate (this “Estoppel Certificate”), dated as of [_____], 202[__], is provided by the City of Victorville, a municipal corporation and Charter City organized and existing under the laws of the State of California (“Victorville”), Industry Public Utilities, a public agency organized and existing under the Law of the State of California (“Industry”) and City of Corona, a municipal corporation organized and existing under the laws of the State of California (“Corona”, and together with Victorville and Industry and each of their permitted successors and assigns, the “Offtakers”). Capitalized terms used but not defined herein shall have the meaning set forth in the Contract (as hereinafter defined).
RECITALS
A. The Offtakers and RE Gaskell West 2 LLC, a Delaware limited liability company (“Seller”) have entered into that certain Renewable Power Purchase Agreement, dated as of October 27, 2021, as amended by that certain First Amendment to Renewable Power Purchase Agreement, dated as of [___], 2022 (as further amended from time to time in accordance with the terms thereof and hereof, the “Contract”), pursuant to which Seller will (i) develop, design, construct, own and operate an approximately 29 MW solar photovoltaic electric power generation plant with an integrated 20MWac/80MWh battery storage facility located in Kern County, California (the “Project”) and (ii) sell to the Offtakers the Product.
B. Pursuant to that certain Equity Capital Contribution Agreement, dated as of [_____], 2022 (the “ECCA”), to be entered into by and among [________], a Delaware limited liability company (the “Company”), BAL Investment & Advisory, Inc., a Delaware corporation (“BALIA” or the “Tax Equity Investor”), and [_________], a Delaware limited liability company, on the Initial Contribution Date (as defined in the ECCA), BALIA will make a tax equity investment in the Company, which, as of the Initial Contribution Date (as defined in the ECCA), will own 100% of the membership interests in Seller.
C. Pursuant to the ECCA, the Tax Equity Investor requires that this Estoppel Certificate be delivered as a condition precedent to its investment in the Company.
AGREEMENT
In consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, each Offtaker hereby agrees as follows:
1. Such Offtaker acknowledges that the acquisition by the Tax Equity Investor of membership interests in the Company, the direct parent of Seller, does not require the consent of such Offtaker and does not otherwise cause a breach or default of the Contract.
2. If (i) Seller defaults in the performance of any of its obligations under the Contract or (ii) upon the occurrence or non-occurrence of any event or condition under the Contract which would immediately or with the passage of any applicable grace -2-
period or the giving of notice, or both, enable such Offtaker to terminate or suspend its performance under the Contract (a “Contract Default”), such Offtaker will not terminate or suspend its performance under the Contract until it first gives written notice of such Contract Default to the Tax Equity Investor at the address listed in Exhibit A of this Estoppel Certificate (the date of such notice, the “Date of Notice”) and affords the Tax Equity Investor the right to cure such Contract Default in accordance with the following: (a) commencing as of the Date of Notice, the Tax Equity Investor shall have the same period of time to cure the breach or default that Seller is entitled to under the Contract plus an additional period of five (5) Business Days if such default is the failure to pay amounts to such Offtaker which are due and payable by Seller under the Contract (a “Monetary Default”); and (b) commencing as of the Date of Notice, for any breach or default under the Contract other than a Monetary Default, the Tax Equity Investor shall have the same period of time to cure the breach or default that Seller is entitled to under the Contract plus an additional period of thirty (30) days, so long as the Tax Equity Investor promptly commences and diligently pursues the cure.
Each applicable Offtaker hereby represents and warrants that as of the date of this Estoppel Certificate:
1. The copy of the Contract, attached hereto as Exhibit B, constitutes a true, correct and complete copy of the Contract.
2. It (i) is either a municipal corporation or a public agency, as applicable, duly formed and validly existing under the laws of the state of its organization, (ii) is duly qualified, authorized to do business and in good standing in every jurisdiction necessary to perform its obligations in this Estoppel Certificate and under the Contract, and (iii) has all requisite power and authority to enter into and to perform its obligations in this Estoppel Certificate and under the Contract, and to carry out the terms hereof and thereof and the transactions contemplated hereby and thereby;
3. The execution, delivery and performance of this Estoppel Certificate and the Contract have been duly authorized by all necessary action on its part and do not require any approvals, material filings with, or consents of any entity or person which have not previously been obtained or made;
4. The Contract is in full force and effect, and each of this Estoppel Certificate and the Contract has been duly executed and delivered on behalf of such Offtaker by the appropriate officers of such Offtaker, and constitutes the legal, valid and binding obligation of such Offtaker, enforceable against such Offtaker in accordance with its terms, except as the enforceability thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application affecting the enforcement of creditors’ rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law);
-3-
5. The execution, delivery and performance by it of this Estoppel Certificate and the Contract, and the consummation of the transactions contemplated hereby and thereby, will not result in any violation of, breach of or default under any term of (i) its formation or governance documents, or (ii) any contract or agreement to which it is a party or by which it or its property is bound, or of any legal requirements presently in effect having applicability to it, the violation, breach or default of which could have a material adverse effect on its ability to perform its obligations under this Estoppel Certificate or the Contract;
6. (i) Neither such Offtaker nor, to such Offtaker’s knowledge, Seller, is in default of any of its obligations under the Contract and (ii) there exists no event or condition that could, either immediately or with the passage of time or giving of notice, or both, be reasonably expected to entitle Seller or such Offtaker to terminate or suspend its obligations under the Contract;
7. As of the date hereof, the Contract represents the entire agreement between such Offtaker and Seller with respect to the subject matter thereof and, except as set forth in the recitals hereto, the Contract has not been assigned or amended, supplemented, or modified;
8. Seller does not owe any payments to such Offtaker with respect to liquidated damages, warranty, or indemnity claims and Seller has not received or, to such Offtaker’s knowledge, claimed any amounts under the indemnification obligations of such Offtaker set forth in the Contract;
9. All representations and warranties by such Offtaker under the Contract are true and correct as of the date hereof;
10. As of the date hereof, (i) there is no pending or, to such Offtaker’s knowledge, threatened dispute or legal proceeding between such Offtaker and Seller, and (ii) there is no pending or, to such Offtaker’s knowledge, threatened action or proceeding affecting such Offtaker before any court, governmental agency or arbitrator that could reasonably be expected to have a material adverse effect on the ability of such Offtaker to perform its obligations under the Contract, or that purports to affect the legality, validity or enforceability of the Contract;
11. Such Offtaker has no existing counterclaims, offsets or defenses against Seller under the Contract;
12. Such Offtaker is not aware of any event, act, circumstance or condition constituting an event of force majeure under the Contract;
13. To such Offtaker’s knowledge, the obligations of Seller under the Contract required to be performed on or before the date hereof (including the payment of any amounts) have been properly performed or expressly waived in writing. -4-
14. [Such Offtaker has not provided any objection and does not object to the COD Certificate, which was delivered to the Offtakers on [_____], 2022.]1 Each of Victorville and Corona hereby represents and warrants that as of the date of this Estoppel Certificate:
15. Without limiting paragraphs 16 and 17 below, such Offtaker’s obligations to make payments under the Contract are supported by, but are not limited exclusively to, the revenues from the electric utility operations of such Offtaker.
16. There are no restrictions regarding the source of funds that such Offtaker may draw from in order to pay amounts due under the Contract and payments under the Contract are obligations of such Offtaker.
17. Such Offtaker’s obligations to make payments under the Contract are unsubordinated obligations and such payments are operating and maintenance costs (or similar designation) of such Offtaker, and as such are in the category of costs that enjoy first priority of payment at all times under any and all bond ordinances or indentures to which such Offtaker is a party, and such general undertakings are permitted by Article XI of the California Constitution, all other relevant constitutional, organic or other governing documents and any other Law presently in effect having applicability to such Offtaker.
[Remainder of Page Left Intentionally Blank.]
1 To be included for Substantial Completion Contribution Date.
Signature Page to Three Cities PPA Estoppel (Gaskell West) IN WITNESS WHEREOF, each Offtaker, by its own officer duly authorized, has duly executed this Estoppel Certificate as of the date first set forth above.
CITY OF VICTORVILLE
a municipal corporation and Charter City,
By:
Name:
Title:
Signature Page to Three Cities PPA Estoppel (Gaskell West)
INDUSTRY PUBLIC UTILITIES
a public agency,
By:
Name:
Title:
Signature Page to Three Cities PPA Estoppel (Gaskell West)
CITY OF CORONA
a municipal corporation,
By:
Name:
Title:
EXHIBIT A
TAX EQUITY INVESTOR NOTICE DETAILS
BALIA:
BAL Investment & Advisory, Inc.
c/o Bank of America, N.A.
555 California Street, 6th Floor
CA5-705-06-34
San Francisco, CA 94104
Attn: Contracts Administration
Phone: (415) 765-7391
Facsimile: (404) 532-3461
Email: [email protected]
With a copy to:
BAL Investment & Advisory, Inc.
One Financial Plaza, 2nd Floor
RI1-537-02-02
Providence, RI 02903
Attention: BAL Renewable Energy Finance Portfolio Manager Phone: (401) 278-8475
Facsimile: (404) 532-3461
Email: [email protected]
EXHIBIT B
CONTRACT