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Q&A Tool

Category:  Other
Subject:  Assignment and Change of Control
ID:  10763
Date:  9/18/2009
Question:  If a project application is made by way of a joint venture partnership, can Assignment/Change of Control be made amongst the partners without restrictions?
Answer:  The answer to this is no. Where two or more parties choose to come forward as an unincorporated Joint Venture for purposes of constituting the "Supplier" under the FIT Contract, they are jointly and severally liable as the Supplier and each named entity will, individually, and collectively with the other named JV parties, constitute the Supplier. In this respect, each of the named JV parties and the collective JV itself is subject to the restrictions on assignment/change of control.

The policy rationale for the restrictions on assignment/change of control of Suppliers under OPA contracts would be violated if the majority and minority interests in the Supplier could be swapped as between separately named JV partners during the applicable restriction period just because the parties happened to come forward in that form as opposed to a different business form such as a corporation or a limited partnership.

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