UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): November 30, 2020
Sunnova Energy International Inc.
(Exact name of registrant as specified in its charter)
Delaware | 001-38995 | 30-1192746 | ||
(State or other jurisdiction of incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification Number) |
20 East Greenway Plaza, Suite 540
Houston, Texas 77046
(Address, including zip code, of principal executive offices)
(281) 985-9904
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2):
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class |
Trading Symbol(s) |
Name of Each Exchange on Which Registered |
||
Common Stock, $0.0001 par value per share | NOVA | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. |
Entry into a Material Definitive Agreement |
As previously disclosed, on October 28, 2020, a wholly owned subsidiary (the “TEP IV Borrower”) of Sunnova Energy International Inc., a Delaware corporation (the “Company”), entered into that certain Eighth Amendment (the “TEP IV Eighth Amendment”), which amends that certain Credit Agreement, dated as of September 6, 2019 (the “TEP IV Credit Agreement”), by and among the TEP IV Borrower, certain other subsidiaries of the Company, Credit Suisse AG, New York Branch, as agent, and the lenders and other financial institutions party thereto.
On November 9, 2020, the TEP IV Borrower entered into that certain Ninth Amendment (the “TEP IV Ninth Amendment”), which amends the TEP IV Credit Agreement. Capitalized terms used but not defined in this Current Report on Form 8-K shall have the meanings ascribed to them in the TEP IV Amendment.
The TEP IV Ninth Amendment amended the TEP IV Credit Agreement to, among other things, (i) reduce the borrowing base for solar assets owned by Sunnova TEP IV-G, LLC (“TEPIVG”) (ii) reduce the Class A borrowing base for solar assets owned by TEPIVG, (iii) reduce the Class B aggregate borrowing base for solar assets owned by TEPIVG, (iv) include a carveout for solar assets owned by TEPIVG in the calculation of SRECs available for delivery in the determination of the Project SREC Hedge Ratio, and (v) require that TEPIVG and Sunnova TEP IV-G Manager, LLC, the Class B member of TEPIVG, be included in the first Takeout Transaction immediately following the earlier of certain dates and that the Class A capital contribution commitment related to TEPIVG has not increased since the closing of the TEPIVG tax equity fund in order for any solar assets owned by TEPIVG to be an Eligible Solar Asset.
A copy of the TEP IV Eighth Amendment and the TEP IV Ninth Amendment are attached hereto as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 9.01. |
Financial Statements and Exhibits. |
(d) |
Exhibits |
The following materials are filed as exhibits to this Current Report on Form 8-K.
¥ |
Portions of this exhibit have been omitted. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SUNNOVA ENERGY INTERNATIONAL INC. | ||||||
Date: November 30, 2020 |
By: |
/s/ Walter A. Baker |
||||
Walter A. Baker | ||||||
Executive Vice President, General Counsel and Secretary |
Exhibit 10.1
Execution Version
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (this Amendment) is made as of this 28th day of October, 2020, by and among SUNNOVA TEP HOLDINGS, LLC, a Delaware limited liability company (the Borrower), SUNNOVA TE MANAGEMENT, LLC, a Delaware limited liability company, in its capacity as Facility Administrator (the Facility Administrator), CREDIT SUISSE AG, NEW YORK BRANCH, in its capacity as Administrative Agent for the Lenders (the Administrative Agent), the Lenders and the Funding Agents representing a group of Lenders party to the Credit Agreement (defined below) (together with the Borrower, the Administrative Agent, the Lenders and the Facility Administrator, the Parties), and amends that certain Credit Agreement, dated as of September 6, 2019, as amended by that certain First Amendment to Credit Agreement, dated as of December 2, 2019, as further amended by that certain Consent and Second Amendment to Credit Agreement, dated as of December 31, 2019, as further amended by that certain Third Amendment to Credit Agreement, dated as of January 31, 2020, as further amended by that certain Fourth Amendment to Credit Agreement, dated as of February 28, 2020, as further amended by that certain Fifth Amendment to Credit Agreement, dated as of March 31, 2020, as further amended by that certain Omnibus Amendment, dated as of May 14, 2020, and as further amended by that certain Seventh Amendment to Credit Agreement, dated as of June 26, 2020 (as may be further amended, modified, restated, supplemented or extended prior to the date hereof, the Credit Agreement), by and among the Borrower, the Facility Administrator, the Administrative Agent, the Lenders and the Funding Agents representing a group of Lenders party thereto, Wells Fargo Bank, National Association, in its capacity as Paying Agent, and U.S. Bank National Association, in its capacity as Verification Agent. Capitalized terms used herein have the meanings set forth in the Credit Agreement.
RECITALS
WHEREAS, the Parties hereto desire to amend the Credit Agreement in accordance with Section 10.2(A) thereof as set forth in Section 1 hereof.
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Amendments to the Credit Agreement. Subject to the satisfaction of the conditions set forth in Section 2:
(i) The following provisions of the Credit Agreement in effect
immediately prior to the date hereof are hereby amended to delete the red, stricken text (indicated textually in the same manner as the following example: stricken
text)
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
and to add the blue, double underlined text (indicated in the same manner as the following example: underlined text) as:
Provision |
Amended and Restated Language |
|
Section 5.2(E) |
(E) Dividends, Etc. Declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any interest in Borrower, or purchase, redeem or otherwise acquire for value any interest in the Affiliated Entities or any rights or options to acquire any such interest to any Person that is not the Borrower, except:
(i) transfers, dividends or other distributions of Marketable RECs;
(ii) transfers, dividends or other distributions of Transferable Assets to the Seller pursuant to the Sale and Contribution Agreement;
(iii) distributions of cash by the Borrower to the Borrowers Account in accordance with
Section 2.7(B)(xiv);
(iv) distributions of Solar Assets that were Substantial Stage Solar Assets or Final Stage Solar Assets in
accordance with a SAP Transfer
(v) transfers, dividends or other distributions of Solar Asset Owner Member Interests in connection with a Takeout Transaction;
provided, that the distributions described in subsection (i) of clause (E) shall not be permitted if either an Event of Default or Potential Default would result therefrom unless all outstanding Obligations (other than contingent liabilities for which no claims have been asserted) have been irrevocably paid in full with all accrued but unpaid interest thereon and any related Liquidation Fees; provided further, that nothing in this Section 5.2(E) shall prohibit or limit any Financing Fund Contributions. |
|
Exhibit A Definition of Aggregate Commitment |
Aggregate Commitment shall mean, on any date of determination, the sum of the Commitments then in effect. The Aggregate Commitment as of |
|
Exhibit A Definition of Class A Maximum Facility Amount |
Class A Maximum Facility Amount shall mean
$ |
2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
Exhibit A Definition of Class B-I Aggregate Commitment |
Class B-I Aggregate Commitment shall mean, on any date of determination, the sum of the Class B-I Commitments
then in effect. The Class B-I Aggregate Commitment as of |
|
Exhibit A Definition of Class B-I Maximum Facility Amount |
Class B-I Maximum Facility Amount shall mean
$ |
|
Exhibit A Definition of Class B-II Aggregate Commitment |
Class B-I Aggregate Commitment shall mean, on any date of determination, the sum of the Class B-I Commitments
then in effect. The Class B-I Aggregate Commitment as of |
|
Exhibit A Definition of Class B-II Maximum Facility Amount |
Class B-II Maximum Facility Amount shall mean |
|
Exhibit A Definition of Maximum Facility Amount |
Maximum Facility Amount shall mean $ |
(ii) Section 3.2(A) of the Credit Agreement shall be amended by adding the following clause (xiii) thereto:
(xiii) Class B Advances. With respect to the Class B Advances, the Class A Lenders shall have funded the requested Class A Advances on such Funding Date.
(iii) Exhibit E to the Credit Agreement in effect immediately prior to the date hereof is hereby deleted in its entirety and replaced with Exhibit A hereto.
3
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
2. Conditions Precedent to Amendment. The effectiveness of this Amendment shall be the date on which the following conditions precedent have been satisfied (as determined by the Administrative Agent):
(A) Amendment Documents. The Administrative Agent shall have received a copy of this Amendment duly executed by the parties hereto.
(B) Fee Letter. The Administrative Agent and the Lenders shall have received a copy of the Sixth Amended and Restated Fee Letter duly executed by the Administrative Agent, the Lenders party thereto and the Borrower, in form and substance satisfactory to the Administrative Agent and the Class B Funding Agents.
(C) Payment of Fees. All fees payable to the Administrative Agent and the Lenders pursuant to the Fee Letters and the Credit Agreement shall have been paid.
(D) Representations and Warranties. All of the representations and warranties of the Borrower and the Facility Administrator contained in this Amendment shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) as of the date hereof (or such earlier date or period specifically stated in such representation or warranty).
(E) Legal Opinions. The Administrative Agent and the Lenders shall have received customary opinions from counsel to the Borrower and the Facility Administrator addressing authorization and enforceability of this Amendment and the documents executed in connection therewith and other corporate matters.
(F) Other Documents. The Borrower shall have provided the Administrative Agent with all other documents reasonably requested by the Administrative Agent.
3. Representations and Warranties. Each of the Borrower and the Facility Administrator represents and warrants as of the date of this Amendment as follows:
(i) this Amendment has been duly and validly executed and delivered by such party and constitutes its valid and binding obligation, legally enforceable against such party in accordance with its terms, except as enforceability may be limited by applicable insolvency laws and general principles of equity (whether considered in a proceeding at law or in equity);
(ii) the execution, delivery and performance by it of this Amendment are within its powers, and do not conflict with, and will not result in a violation of, or constitute or give rise to an event of default under (i) any of its organizational documents, (ii) any agreement or other instrument which may be binding upon it, or (iii) any law, governmental regulation, court decree or order applicable to it or its properties, except, in each case, where such conflict, violation or event of default could not reasonably be expected to result in a Material Adverse Effect;
(iii) it has all powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted except where the failure to obtain such licenses, authorizations, consents and approvals would not result in a Material Adverse Effect; and
4
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
(iv) the representations and warranties of such party set forth in the Transaction Documents to which it is a party are true and correct in all material respects (except to the extent there are already materiality qualifiers therein) as of the date hereof.
Each of the Borrower and the Facility Administrator represents and warrants that (i) immediately prior to this Amendment, no Potential Default, Event of Default, Potential Amortization Event or Amortization Event has occurred and is continuing and (ii) no Potential Default, Event of Default, Potential Amortization Event or Amortization Event will occur as a result of the execution of this Amendment.
4. Effect of Amendment; No Novation. This Amendment shall not in any manner constitute or be construed to constitute a novation, discharge, forgiveness, extinguishment or release of any obligation under the Credit Agreement or the other Transaction Documents or to keep and perform any of the terms, conditions, agreements contained in therein. Except as expressly amended and modified by this Amendment, all provisions of the Credit Agreement shall remain in full force and effect and each reference to the Credit Agreement and words of similar import in the Transaction Documents shall be a reference to the Credit Agreement as amended hereby and as the same may be further amended, supplemented and otherwise modified and in effect from time to time. This Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any provision of the Credit Agreement other than as set forth herein. This Amendment is a Transaction Document.
5. No Release; Ratification of Related Documents; Binding Effect. Nothing contained herein and nothing done pursuant hereto shall affect or be construed to affect or to release the liability of any party or parties whomsoever who may now or hereafter be liable under or on account of the Indebtedness under the Credit Agreement and the other Transaction Documents. Except as expressly provided herein, (i) nothing herein shall limit in any way the rights and remedies of the Secured Parties under the Credit Agreement and the other Transaction Documents, and (ii) the terms and conditions of the Credit Agreement and the other Transaction Documents remain in full force and effect and are hereby ratified and affirmed. The Borrower hereby ratifies and affirms all of its promises, covenants and obligations to promptly and properly pay any and all sums due under the Credit Agreement and the other Transaction Documents, as amended by this Amendment and to promptly and properly perform and comply with any and all of its obligations, duties and agreements pursuant thereto, as modified hereby or in connection herewith. This Amendment shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.
6. Entire Agreement; Effectiveness. This Amendment constitutes the entire agreement among the Parties with respect to the matters dealt with herein. All previous documents, undertakings and agreements, whether verbal, written or otherwise, among the Parties with respect to the subject matter of this Amendment, are hereby cancelled and superseded and shall not affect or modify any of the terms or obligations set forth in this Amendment. Upon the execution of this Amendment, this Amendment shall be binding upon and inure to the benefit of the Parties.
5
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
7. Severability. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and without affecting the validity or enforceability of any provision in any other jurisdiction.
8. Incorporation By Reference. Sections 10.9 (Governing Law), 10.10 (Jurisdiction), 10.11 (Waiver of Jury Trial), 10.20 (Non-Petition) and 10.21 (Non-Recourse) of the Credit Agreement hereby are incorporated by reference as if fully set forth in this Amendment mutatis mutandis.
9. Counterparts. This Amendment may be executed in any number of counterparts and by different Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or by e-mail in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart of this Amendment.
[Signature Pages Follow]
6
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written above.
SUNNOVA TEP HOLDINGS, LLC, as Borrower | ||
By: |
/s/ Walter A. Baker |
|
Name: | Walter A. Baker | |
Title: | Executive Vice President, General Counsel and Secretary | |
SUNNOVA TE MANAGEMENT, LLC, as Facility Administrator |
||
By: |
/s/ Walter A. Baker |
|
Name: | Walter A. Baker | |
Title: | Executive Vice President, General Counsel and Secretary |
[Signature Page to Sunnova TEP IV Warehouse Credit Agreement Eighth Amendment]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
CREDIT SUISSE AG, NEW YORK
BRANCH,
|
||||
By: |
/s/ Patrick Duggan |
|||
Name: | Patrick Duggan | |||
Title: | Vice President | |||
By: |
/s/ Erin McCutcheon |
|||
Name: | Erin McCutcheon | |||
Title: | Director | |||
CREDIT SUISSE AG, CAYMAN
ISLANDS BRANCH,
|
||||
By: |
/s/ Patrick Duggan |
|||
Name: | Patrick Duggan | |||
Title: | Authorized Signatory | |||
By: |
/s/ Erin McCutcheon |
|||
Name: | Erin McCutcheon | |||
Title: | Authorized Signatory |
[Signature Page to Sunnova TEP IV Warehouse Credit Agreement Eighth Amendment]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
ALPINE SECURITIZATION LTD., as a Conduit Lender |
||
By: CREDIT SUISSE AG, NEW YORK BRANCH, as attorney-in-fact |
||
By: |
/s/ Patrick Duggan |
|
Name: | Patrick Duggan | |
Title: | Vice President | |
By: |
/s/ Erin McCutcheon |
|
Name: | Erin McCutcheon | |
Title: | Director |
[Signature Page to Sunnova TEP IV Warehouse Credit Agreement Eighth Amendment]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
LIBREMAX OPPORTUNISTIC VALUE MASTER FUND, LP, as a Funding Agent and as a Lender |
||
By: | LibreMax GP, LLC, its general partner | |
By: | LibreMax Parent GP, LLC, its managing member | |
By: |
/s/ Frank Bruttomesso |
|
Name: | Frank Bruttomesso | |
Title: | GC |
[Signature Page to Sunnova TEP IV Warehouse Credit Agreement Eighth Amendment]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
Exhibit A
EXHIBIT E
COMMITMENTS
Class A Commitments: | ||
The Class A Aggregate Commitment | ||
Credit Suisse AG, Cayman Islands Branch | $[***] | |
Total: | $[***] | |
Class B Commitments: | ||
The Class B-I Aggregate Commitment | ||
LibreMax Opportunistic Value Master Fund, LP | $[***] | |
Total: | $[***] | |
The Class B-II Aggregate Commitment | ||
LibreMax Opportunistic Value Master Fund, LP | $[***] | |
Total: | $[***] |
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
Exhibit 10.2
Execution Copy
NINTH AMENDMENT TO CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT (this Amendment) is made as of this 9th day of November, 2020, by and among SUNNOVA TEP HOLDINGS, LLC, a Delaware limited liability company (the Borrower), SUNNOVA TE MANAGEMENT, LLC, a Delaware limited liability company, in its capacity as Facility Administrator (the Facility Administrator), CREDIT SUISSE AG, NEW YORK BRANCH, in its capacity as Administrative Agent for the Lenders (the Administrative Agent), the Lenders and the Funding Agents representing a group of Lenders party to the Credit Agreement (defined below) (together with the Borrower, the Administrative Agent, the Lenders and the Facility Administrator, the Parties), and amends that certain Credit Agreement, dated as of September 6, 2019, as amended by that certain First Amendment to Credit Agreement, dated as of December 2, 2019, as further amended by that certain Consent and Second Amendment to Credit Agreement, dated as of December 31, 2019, as further amended by that certain Third Amendment to Credit Agreement, dated as of January 31, 2020, as further amended by that certain Fourth Amendment to Credit Agreement, dated as of February 28, 2020, as further amended by that certain Fifth Amendment to Credit Agreement, dated as of March 31, 2020, as further amended by that certain Omnibus Amendment, dated as of May 14, 2020, as further amended by that certain Seventh Amendment to Credit Agreement, dated as of June 26, 2020, and as further amended by that certain Eighth Amendment to Credit Agreement, dated as of October 28, 2020 (as may be further amended, modified, restated, supplemented or extended prior to the date hereof, the Credit Agreement), by and among the Borrower, the Facility Administrator, the Administrative Agent, the Lenders and the Funding Agents representing a group of Lenders party thereto, Wells Fargo Bank, National Association, in its capacity as Paying Agent, and U.S. Bank National Association, in its capacity as Verification Agent. Capitalized terms used herein have the meanings set forth in the Credit Agreement.
RECITALS
WHEREAS, the Parties hereto desire to amend the Credit Agreement in accordance with Section 10.2(A) thereof as set forth in Section 1 hereof.
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Amendments to the Credit Agreement. Subject to the satisfaction of the conditions set forth in Section 2:
(i) The following provisions of the Credit Agreement in effect
immediately prior to the date hereof are hereby amended to delete the red, stricken text (indicated textually in the same manner as the following example: stricken
text)
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
and to add the blue, double underlined text (indicated in the same manner as the following example: underlined text) as:
Provision |
Amended and Restated Language |
|
Exhibit A Definition of Borrowing Base |
Borrowing Base shall mean, as of any date of determination, the product of (x)(a) the Aggregate Discounted Solar Asset Balance minus (b) the Excess Concentration Amount times (y)(1) with respect to Solar Assets not owned by TEP IV-G and included in clause (x), (a) |
|
Exhibit A Definition of Class A Borrowing Base | Class A Borrowing Base shall mean, as of any date of determination, the product of (i) the Borrowing Base as of such date and (ii) (a) if the Borrowing Base is attributable to Solar Assets owned by TEP IV-G, [***] and (b) if the Borrowing Base is attributable to Solar Assets not owned by TEP IV-G, [***]. | |
Exhibit A Definition of Class B Aggregate Borrowing Base | Class B Aggregate Borrowing Base shall mean, as of any date of determination, the product of (i) the Borrowing Base as of such date and (ii) (a) if the Borrowing Base is attributable to Solar Assets owned by TEP IV-G, [***] and (b) if the Borrowing Base is attributable to Solar Assets not owned by TEP IV-G, [***]. | |
Exhibit A Definition of Projected SREC Hedge Ratio | Projected SREC Hedge Ratio shall mean, with respect to a state and SREC Year, the quotient (expressed as a percentage) of (i) the sum of all SRECs to be delivered for such SREC Year (or portion of an SREC Year remaining) under Hedged SREC Agreements for such state, divided by (ii) SRECs that are available for delivery in such SREC Year (or portion of an SREC Year remaining) in such state, as calculated by the Administrative Agent; provided, that PV Systems owned by TEP IV-G will not be included in the calculation of SRECs available for delivery. For the avoidance of doubt, only PV Systems that have been certified for SREC production will be included in the calculation of SRECs available for delivery. |
2
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
(ii) Exhibit A to the Credit Agreement shall be amended by adding the following definition of TEP IV-G in the appropriate alphabetical order:
TEP IV-G shall mean Sunnova TEP IV-G, LLC, a Delaware limited liability company.
(iii) Exhibit A to the Credit Agreement shall be amended by adding the following definition of TEP IV-G Closing Date in the appropriate alphabetical order:
TEP IV-G Closing Date shall mean November 9, 2020.
(iv) Exhibit A to the Credit Agreement shall be amended by adding the following definition of TEP IV-G Takeout Transaction Failure in the appropriate alphabetical order:
TEP IV-G Takeout Transaction Failure shall mean the failure of TEP IV-G and the Managing Member of TEP IV-G to be included in the first Takeout Transaction immediately following the earliest of (i) October 31, 2021, (ii) the occurrence of the Completion Deadline (under and as defined in the Financing Fund LLCA of TEP IV-G) and (iii) the occurrence of the Placed-in-Service Date (under and as defined in the Financing Fund LLCA of TEP IV-G) with respect to the last Project (as defined in the Financing Fund LLCA of TEP IV-G).
(v) Schedule I to the Credit Agreement shall be amended by adding the following paragraph 46 thereto:
46. TEP IV-G. If such Solar Asset is owned by TEP IV-G:
a. |
a TEP IV-G Takeout Transaction Failure has not occurred; and |
b. |
the Class A Capital Contribution Commitment (as defined in the Financing Fund LLCA of TEP IV-G) has not been increased since the TEP IV-G Closing Date. |
(vi) Schedule I, Schedule II-A and Schedule II to Exhibit B-1 to the Credit Agreement shall be deleted in its entirety and replaced with Exhibit A hereto.
3
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
2. Conditions Precedent to Amendment. The effectiveness of this Amendment shall be the date on which the following conditions precedent have been satisfied (as determined by the Administrative Agent):
(A) Amendment Documents. The Administrative Agent shall have received a copy of this Amendment duly executed by the parties hereto.
(B) Representations and Warranties. All of the representations and warranties of the Borrower and the Facility Administrator contained in this Amendment shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) as of the date hereof (or such earlier date or period specifically stated in such representation or warranty).
(C) Legal Opinions. The Administrative Agent and the Lenders shall have received customary opinions from counsel to the Borrower and the Facility Administrator addressing authorization and enforceability of this Amendment and the documents executed in connection therewith and other corporate matters.
(D) Other Documents. The Borrower shall have provided the Administrative Agent with all other documents reasonably requested by the Administrative Agent.
3. Representations and Warranties. Each of the Borrower and the Facility Administrator represents and warrants as of the date of this Amendment as follows:
(i) this Amendment has been duly and validly executed and delivered by such party and constitutes its valid and binding obligation, legally enforceable against such party in accordance with its terms, except as enforceability may be limited by applicable insolvency laws and general principles of equity (whether considered in a proceeding at law or in equity);
(ii) the execution, delivery and performance by it of this Amendment are within its powers, and do not conflict with, and will not result in a violation of, or constitute or give rise to an event of default under (i) any of its organizational documents, (ii) any agreement or other instrument which may be binding upon it, or (iii) any law, governmental regulation, court decree or order applicable to it or its properties, except, in each case, where such conflict, violation or event of default could not reasonably be expected to result in a Material Adverse Effect;
(iii) it has all powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted except where the failure to obtain such licenses, authorizations, consents and approvals would not result in a Material Adverse Effect; and
(iv) the representations and warranties of such party set forth in the Transaction Documents to which it is a party are true and correct in all material respects (except to the extent there are already materiality qualifiers therein) as of the date hereof.
Each of the Borrower and the Facility Administrator represents and warrants that (i) immediately prior to this Amendment, no Potential Default, Event of Default, Potential Amortization Event or Amortization Event has occurred and is continuing and (ii) no Potential Default, Event of Default, Potential Amortization Event or Amortization Event will occur as a result of the execution of this Amendment.
4
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
4. Effect of Amendment; No Novation. This Amendment shall not in any manner constitute or be construed to constitute a novation, discharge, forgiveness, extinguishment or release of any obligation under the Credit Agreement or the other Transaction Documents or to keep and perform any of the terms, conditions, agreements contained in therein. Except as expressly amended and modified by this Amendment, all provisions of the Credit Agreement shall remain in full force and effect and each reference to the Credit Agreement and words of similar import in the Transaction Documents shall be a reference to the Credit Agreement as amended hereby and as the same may be further amended, supplemented and otherwise modified and in effect from time to time. This Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any provision of the Credit Agreement other than as set forth herein. This Amendment is a Transaction Document.
5. No Release; Ratification of Related Documents; Binding Effect. Nothing contained herein and nothing done pursuant hereto shall affect or be construed to affect or to release the liability of any party or parties whomsoever who may now or hereafter be liable under or on account of the Indebtedness under the Credit Agreement and the other Transaction Documents. Except as expressly provided herein, (i) nothing herein shall limit in any way the rights and remedies of the Secured Parties under the Credit Agreement and the other Transaction Documents, and (ii) the terms and conditions of the Credit Agreement and the other Transaction Documents remain in full force and effect and are hereby ratified and affirmed. The Borrower hereby ratifies and affirms all of its promises, covenants and obligations to promptly and properly pay any and all sums due under the Credit Agreement and the other Transaction Documents, as amended by this Amendment and to promptly and properly perform and comply with any and all of its obligations, duties and agreements pursuant thereto, as modified hereby or in connection herewith. This Amendment shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.
6. Entire Agreement; Effectiveness. This Amendment constitutes the entire agreement among the Parties with respect to the matters dealt with herein. All previous documents, undertakings and agreements, whether verbal, written or otherwise, among the Parties with respect to the subject matter of this Amendment, are hereby cancelled and superseded and shall not affect or modify any of the terms or obligations set forth in this Amendment. Upon the execution of this Amendment, this Amendment shall be binding upon and inure to the benefit of the Parties.
7. Severability. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and without affecting the validity or enforceability of any provision in any other jurisdiction.
8. Incorporation By Reference. Sections 10.9 (Governing Law), 10.10 (Jurisdiction), 10.11 (Waiver of Jury Trial), 10.20 (Non-Petition) and 10.21 (Non-Recourse) of the Credit Agreement hereby are incorporated by reference as if fully set forth in this Amendment mutatis mutandis.
5
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
9. Counterparts. This Amendment may be executed in any number of counterparts and by different Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or by e-mail in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart of this Amendment.
[Signature Pages Follow]
6
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written above.
SUNNOVA TEP HOLDINGS, LLC, as Borrower | ||
By: |
/s/ Walter A. Baker |
|
Name: | Walter A. Baker | |
Title: | Executive Vice President, General Counsel and Secretary | |
SUNNOVA TE MANAGEMENT, LLC, as Facility Administrator |
||
By: |
/s/ Walter A. Baker |
|
Name: | Walter A. Baker | |
Title: | Executive Vice President, General Counsel and Secretary |
[Signature Page to Sunnova TEP IV Warehouse Credit Agreement Ninth Amendment]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
CREDIT SUISSE AG, NEW YORK BRANCH, as Administrative Agent and as a Funding Agent |
||||
By: |
/s/ Erin McCutcheon |
|||
Name: | Erin McCutcheon | |||
Title: | Director | |||
By: |
/s/ Patrick Duggan |
|||
Name: | Patrick Duggan | |||
Title: | Vice President | |||
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender |
||||
By: |
/s/ Erin McCutcheon |
|||
Name: | Erin McCutcheon | |||
Title: | Authorized Signatory | |||
By: |
/s/ Patrick Duggan |
|||
Name: | Patrick Duggan | |||
Title: | Authorized Signatory |
[Signature Page to Sunnova TEP IV Warehouse Credit Agreement Ninth Amendment]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
ALPINE SECURITIZATION LTD., as a Conduit Lender | ||||
By: | CREDIT SUISSE AG, NEW YORK BRANCH, as attorney-in-fact | |||
By: |
/s/ Erin McCutcheon |
|||
Name: | Erin McCutcheon | |||
Title: | Director | |||
By: |
/s/ Patrick Duggan |
|||
Name: | Patrick Duggan | |||
Title: | Vice President |
[Signature Page to Sunnova TEP IV Warehouse Credit Agreement Ninth Amendment]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
LIBREMAX OPPORTUNISTIC VALUE MASTER FUND, LP, as a Funding Agent and as a Lender |
||
By: | LibreMax GP, LLC, its general partner | |
By: | LibreMax Parent GP, LLC, its managing member | |
By: |
/s/ Frank Bruttomesso |
|
Name: | Frank Bruttomesso | |
Title: | Member |
[Signature Page to Sunnova TEP IV Warehouse Credit Agreement Ninth Amendment]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
BOSTON PATRIOT SAINT JAMES ST LLC, as a Lender | ||
BY: | LIBREMAX CAPITAL, LLC, its investment manager | |
By: |
/s/ Frank Bruttomesso |
|
Name: | Frank Bruttomesso | |
Title: | General Counsel |
[Signature Page to Sunnova TEP IV Warehouse Credit Agreement Ninth Amendment]
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
Exhibit A
SCHEDULE I
Class A Borrowing Base Calculation
1. Aggregate Discounted Solar Asset Balance |
$ | |
2. Excess Concentration Amount (see Line 45 of Schedule III) |
$ | |
3. Line 1 minus Line 2 |
$ | |
4. Solar Assets not owned by TEP IV-G that are neither Puerto Rico Solar Assets nor Substantial Stage Solar Assets and are included in Line 3 times 87.500% |
$ | |
5. Puerto Rico Solar Assets not owned by TEP IV-G that are not Substantial Stage Solar Assets and are included in Line 3 times 75.000% |
$ | |
6. Substantial Stage Solar Assets not owned by TEP IV-G and are included in Line 3 times 70.000% |
$ | |
7. Line 4 plus Line 5 plus Line 6 |
$ | |
8. Solar Assets owned by TEP IV-G that are neither Puerto Rico Solar Assets nor Substantial Stage Solar Assets and are included in Line 3 times 65.000% |
$ | |
9. Puerto Rico Solar Assets owned by TEP IV-G that are not Substantial Stage Solar Assets and are included in Line 3 times 55.714% |
$ | |
10. Substantial Stage Solar Assets owned by TEP IV-G and are included in Line 3 times 52.000% |
$ | |
11. Line 8 plus Line 9 plus Line 10 |
$ | |
12. Line 7 times [***] |
$ | |
13. Line 11 times [***] |
$ | |
14. Line 12 plus Line 13 (the Class A Borrowing Base) |
$ | |
15. The Class A Aggregate Commitment |
$[***] | |
16. The lesser of Line 14 and Line 15 |
$ |
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
SCHEDULE II-A
Class B-I Borrowing Base Calculation
1. Aggregate Discounted Solar Asset Balance |
$ | |
2. Excess Concentration Amount (see Line 45 of Schedule III) |
$ | |
3. Line 1 minus Line 2 |
$ | |
4. Solar Assets not owned by TEP IV-G that are neither Puerto Rico Solar Assets nor Substantial Stage Solar Assets and are included in Line 3 times 87.500% |
$ | |
5. Puerto Rico Solar Assets not owned by TEP IV-G that are not Substantial Stage Solar Assets and are included in Line 3 times 75.000% |
$ | |
6. Substantial Stage Solar Assets not owned by TEP IV-G and are included in Line 3 times 70.000% |
$ | |
7. Line 4 plus Line 5 plus Line 6 |
$ | |
8. Solar Assets owned by TEP IV-G that are neither Puerto Rico Solar Assets nor Substantial Stage Solar Assets and are included in Line 3 times 65.000% |
$ | |
9. Puerto Rico Solar Assets owned by TEP IV-G that are not Substantial Stage Solar Assets and are included in Line 3 times 55.714% |
$ | |
10. Substantial Stage Solar Assets owned by TEP IV-G and are included in Line 3 times 52.000% |
$ | |
11. Line 8 plus Line 9 plus Line 10 |
$ | |
12. Line 7 times [***] |
$ | |
13. Line 11 times [***] |
$ | |
14. Line 12 plus Line 13 |
$ | |
15. The Class B-I Aggregate Commitment |
$[***] | |
16. The lesser of Line 14 and Line 15 |
$ |
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.
SCHEDULE II-B
Class B-II Borrowing Base Calculation
1. Aggregate Discounted Solar Asset Balance |
$ | |||
2. Excess Concentration Amount (see Line 45 of Schedule III) |
$ | |||
3. Line 1 minus Line 2 |
$ | |||
4. Solar Assets not owned by TEP IV-G that are neither Puerto Rico Solar Assets nor Substantial Stage Solar Assets and are included in Line 3 times 87.500% |
$ | |||
5. Puerto Rico Solar Assets not owned by TEP IV-G that are not Substantial Stage Solar Assets and are included in Line 3 times 75.000% |
$ | |||
6. Substantial Stage Solar Assets not owned by TEP IV-G and are included in Line 3 times 70.000% |
$ | |||
7. Line 4 plus Line 5 plus Line 6 |
$ | |||
8. Solar Assets owned by TEP IV-G that are neither Puerto Rico Solar Assets nor Substantial Stage Solar Assets and are included in Line 3 times 65.000% |
$ | |||
9. Puerto Rico Solar Assets owned by TEP IV-G that are not Substantial Stage Solar Assets and are included in Line 3 times 55.714% |
$ | |||
10. Substantial Stage Solar Assets owned by TEP IV-G and are included in Line 3 times 52.000% |
$ | |||
11. Line 8 plus Line 9 plus Line 10 |
$ | |||
12. Line 7 times [***] |
$ | |||
13. Line 11 times [***] |
$ | |||
14. Line 12 plus Line 13 |
$ | |||
15. The greater of (a) Line 14 minus the Class B-I Aggregate Commitment and (b) zero |
$ | |||
16. The Class B-II Aggregate Commitment |
$[***] | |||
17. The lesser of Line 15 and Line 16 |
$ |
[***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause competitive harm to the company if publicly disclosed.