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HomeMy WebLinkAbout2020-3052Execution Version CONSENT AND ACKNOWLEDGMENT This CONSENT AND ACKNOWLEDGMENT (this "Consent"), dated as of December _1 __ .. 2020, is executed and delivered by City of Columbia Heights (the "Subscriber") and Corn1lhe 2 Community Solar LLC, a Minnesota limited liability company (the "Operator''). WHEREAS, the Subscriber and the Operator have entered into that certain Subscription Agreement for a Solar•Rewards Community Project, dated as of April 15, 2020 (collectively, and as further amended, amended and restated or otherwise modified from time to time, the ''Agreement''). Capitalized terms used herein and not defined in this Consent shall have the respective meanings given to such terms in the Agreement (as defined below). WHEREAS, Operator (together with its successors and permitted assigns, the Operator, and 53 KE Solar Trust, a statutory trust established pursuant to the Delaware Statutory Trust Act and the Trust Agreement ("Lessor"), have entered into or will enter into that certain Lease Agreement, dated on or about the date hereof (the "Lease Agreement"), pursuant to which the Project will be acquired by Lessor, and Lessor will lease to Operator the Project. NOW, THEREFORE, Lessor has requested that Subscriber confirms certain matters with respect to the Agreement, and Subscriber agrees to confirm such matters as follows: (a) The Subscriber acknowledges that the Project will be acquired by Lessor and leased to the Operator in reliance upon the execution and delivery by the Subscriber this Consent. (b) The Subscriber consents to the sale of the Project to Lessor and to the lease of the Project to the Operator. ( c) The Subscriber consents in all respects to the grant by the Operator of a security interest in the Agreement for the benefit of Lessor. (d) The Subscriber acknowledges the right, but not the obligation, of Lessor or Lessor's designee, in the exercise of Lessor's rights and remedi~s under t~e Lease Agreen:ient and the related security documents to make all demands, give all notices, take a ll ac tions and exercise all rights of the Operator in accordance with the Agreement, and agrees that in such event the Subscriber shall continue to perform its obligations under the Agreement. (e) Subscriber is duly organized, validly exi~ting,_and in good :ta~ding in the jurisdiction of its organization and is qualified to do busmess 111 the State of Mmnesota. (f) Subscriber has full legal capacity to enter into and perform its obli gati ons unde r the Agreement and this Consent. (g) The execution of the Agreement and this Consent has ~een dul y authorized _ by_ the Subscriber and any person executing the Agreement and thi s Consent on behalf of the Subscriber has full authority to bind the Subscriber. Cornillie 2 Subscription Agreement Consent~ City of Columbia lleigltts Contract # 2020-3052 Execution Version (h) To the best of Subscriber's knowledge, there is no pending litigation, governmental action, proceeding, investigation or other legal process affecting or involving the Subscriber's ability to carry out its obligations under the Agreement or this Consent. (i) The Date of Commercial Operation will occur on January I, 2021. U) Neither the Subscriber nor, to the Subscriber's knowledge, the Operator is in default of any of its obligations under the Agreement. To the Subscriber's knowledge, no event or condition exists that would either immediately or with the passage of any applicable grace period or giving of notice, or both, enable either the Subscriber or the Operator to terminate or suspend its obligations (or the performance of such obligations) under the Agreement. (k) Subscriber acknowledges that Lessor is a Financing Party as defined in the Agreement. As provided in Section I0.3(c) of the Agreement, Subscriber shall deliver a copy of any notice delivered to the Operator of its intent to terminate or suspend the Agreement at the same time such notice is delivered to the Operator, specifying the condition giving rise to such right, to Lessor, at Lessor's address as set forth on Schedule I hereto. As provided for in Section 10.3 of the Agreement, Subscriber shall afford Lessor the same opportunity as is afforded to the Operator to cure the condition giving rise to Subscriber's right to terminate or suspend the Agreement, or such longer period as is allowed to a Financing Party as specified in Section 10.3 of the Agreement, if any. (I) Any notice required, permitted, or contemplated under this Consent shall be in writing and addressed to the party to be notified at the address set forth below or at such other address or addresses as a party may designate for itself from time to time by notice hereunder. Such notices may be sent by registered U.S. Mail, personal delivery or recognized overnight courier, and shall be deemed effective upon receipt or, if by registered mail, three days after the postmarked date. (m) This Consent may not be amended, changed, modified, or altered unless such amendment, change, modification, or alteration is in writing and signed by each party to this Consent or its successor in interest. This Consent inures to the benefit of and is binding upon the parties to this Consent and their respective successors and permitted assigns. (n) This Consent will be governed by and construed in accordance with the Laws of the State of Minnesota without regard to conflicts of law provisions. (o) This Consent may be executed in counterparts, which shall together constitute one and the same agreement. Facsimile or portable document format (".PDF") signatures shall have the same effect as original signatures, and each party to this Consent consents to the admission in evidence of a facsimile or photocopy of this Consent in any court or arbitration proceedings between the parties to this Consent. [Signature Page Follows.} Cornillie 2 Subscription Agreement Consent-City of Columbia Heights Executed as of the date first set forth above. SUBSCRIBER: City of Columbia Heights Name: Kelli Bourgeois T~e: City Manager Execution Version Comil/ie 2 Subscription Agreement Com,e11t-City of Columbia l-fri{:lits Execution Version OPERATOR: Comillie 2 Community Solar LLC, a Minnesota limited liability company Name: Thomas C. Biddinger Title: Executive Vice President Corn ii/le 2 Subscription Agreeme111 Cmiw:nt-City of ('ol11mbi11 Hl'i,::/11 ~ If to Subscriber: Ifto Operator: If to Lessor: Execution Version SCHEDULE I Notices City of Columbia Heights 590 40th Avenue NE Columbia Heights, MN 55421 Comillie 2 Community Solar LLC 311 North Bayshore Drive Safety Harbor, FL 34695 53 KE Solar Trust c/o Wilmington Trust, National Association 1100 N. Market Street Wilmington, DE 19890-1605 Attention: Corporate Trust Administration Facsimile: (302) 636-4140 Confirmation: (302) 636-6000 With a copy to: Fifth Third Bank 38 Fountain Square Plaza MD10904A Cincinnati, Ohio 45263 Attn: Sales Support Manager Facsimile: (513) 534-6706 Cornillie 2 Subscription Agreement Co11.~e11t-City of Columbia fl eight~